The Latest Progressive Attack on Speech- Still infuriated by the Citizens United ruling, the left keeps trying to undo that blow for freedom.By Dan Epstein
The central figure is Rep. Chris Van Hollen (D., Md.), who argues that he has a right to participate “in elections untainted by expenditures from undisclosed sources.” He sued the Federal Election Commission in 2011, claiming that the agency infringed upon this right. In his lawsuit, he says that federal law requires nonprofits that fund “electioneering communications”—ads that advocate for a candidate’s election or defeat—to release a full list of supporters. Mr. Van Hollen asked the court to strike down an FEC regulation that prevents such disclosure.
Issued in 2007, the FEC rule requires nonprofits to disclose only donors who gave money for the specific purpose of funding electioneering communications. Those who funded, say, a new research program, didn’t need to be disclosed. The FEC intended to balance the public’s interest in political disclosure with the freedoms protected by the First Amendment. As such, there is disclosure for those who engaged in the electoral process, and privacy for those who didn’t.
This sensible rule is consistent with federal law and Supreme Court precedent. The Internal Revenue Code allows most nonprofit organizations to keep their supporters’ identities private. At the same time, the Federal Election Campaign Act requires disclosure for individuals and organizations engaged in electioneering communications.
In the 1958 case NAACP v. Alabama and again in the 1982 case Brown v. Socialist Workers ’74 Campaign Comm., the Supreme Court ruled against government-compelled disclosure. Justice Thurgood Marshall wrote in Socialist Workers that the First Amendment bars disclosure that will lead to “threats, harassment, or reprisal from either government officials or private parties.” He concluded that “such disclosures would infringe the First Amendment rights” of those who could suffer such injuries. Put another way, disclosure—and the actions that follow from it—can profoundly chill free speech.
But that is Mr. Van Hollen’s endgame, lest his political career be jeopardized by groups criticizing his record. Why else would he file the case after the Supreme Court issued its 2010 ruling in Citizens United, rather than challenging the FEC when the rule was proposed in 2007?
By now many are familiar with efforts to chip away at the First Amendment protections the Supreme Court laid out in 2010. The campaign began that year when President Obama unleashed a rhetorical attack on the Supreme Court during his State of the Union address. He accused the justices of “opening the floodgates for special interests.”
The campaign continued in 2011 and 2012 with the Internal Revenue Service’s targeting of conservative nonprofits— Lois Lerner, the IRS employee at the center of the scandal, declared once in an email that “Citizens United is by far the worst thing that has ever happened to this country”—and in 2014 with the agency’s announcement that it would issue restrictive regulations governing such organizations.
The effort perhaps reached its zenith last year when 54 U.S. Senators voted for a constitutional amendment that would give Congress power to overturn Citizens United and regulate political speech under the guise of advancing “the fundamental principle of political equality for all.” For a preview of where that logic leads, recall that in oral arguments for Citizens United, Deputy Solicitor General Malcolm Stewart said government had the power to ban books.
Yet most of these examples have so far only swayed public opinion—none of them has shaped federal laws or regulations. Rep. Van Hollen’s lawsuit, on the other hand, is an attempt to force an immediate change in federal election policy. The D.C. District Court agreed with his logic: Judge Amy Berman Jackson held that the FEC’s regulation is “arbitrary, capricious, and contrary to law.” If the D.C. Circuit Court reaches the same conclusion, it will be the first concrete victory undoing Citizens United.
If the court forces nonprofits to disclose the identity of their supporters, it will lead to the “threats, harassment, or reprisal” that chill free speech and limit free association, just as the Supreme Court has warned. That is what Rep. Van Hollen, President Obama and their allies on the left want—and it’s precisely why the federal judiciary should stop them.
Mr. Epstein is executive director at Cause of Action, which filed an amicus brief in Van Hollen v. FEC.
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