House State Affairs Testimony on Free Speech & Public Discourse

Written Testimony
House Committee on State Affairs
May 1, 2014

Regarding the following Interim Charge: Study Title 15 of the Election Code, which regulates political funds and campaigns, including requirements for financial reports by campaigns, candidates, officeholders, and political committees. Specifically, study what types of groups are exempt from reporting requirements in the Election Code and make recommendations on how to make the political process more transparent.

Transparency in the political process is an important issue. As this Committee considers its Interim Charge to study Title 15 of the Election Code and how to make the political process more transparent, a few points need to be made on this topic, particularly in light of the historical importance placed on participation in the political realm, and recent legislation which could have had the unintended consequence of discouraging speech and public discourse.

The United States has a long history of valuing political speech. Indeed, that value was enshrined in the first Amendment to the U.S. Constitution, which demands that Congress make no law abridging the freedom of speech or the freedom to petition the Government for a redress of grievances.

Under the umbrella of political speech, there has always been a high level of importance placed on anonymous political speech. Perhaps the most famous example of anonymous political participation came in the form of the Federalist Papers, published anonymously under the pseudonym “Publius,” to argue in favor of ratifying the Constitution. The rebuttal was made by another anonymous author, “the Federal Farmer.”

The United States Supreme Court has ruled that suppression of anonymous political speech is unconstitutional in many instances. For example, the Court has struck down laws against anonymous political pamphlets (Lovell v. City of Griffin, 1938), a statute requiring union officials to register with the Texas Secretary of State before soliciting members (Thomas v. Collins, 1945), laws requiring people to wear ID badges as they circulate pamphlets in favor of ballot initiatives (Buckley v. American Constitutional Law Foundation, 1999), laws requiring political pamphlets to have identifying information on them (McIntyre v. Ohio Elections Commission, 1995), and many others. Anonymity has also been protected in the context of free association, most notably in NAACP v. Alabama (1958), in which the Court ruled that the state could not compel the NAACP to turn over its membership list.

The Court has placed such a high value on anonymous political speech because not doing so would allow suppression of important views that help shape our society. In McIntyre v. Ohio Elections Commission, an important case for anonymous political speech, the Court explained why protection of anonymous speech is so important. It pointed out that “the decision [of speakers] in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.” Indeed, the court went on:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views… Anonymity is a shield from the tyranny of the majority… It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation… at the hand of an intolerant society.

These fundamental concerns emanate from the reality that people fear political retaliation when they participate openly in public discourse, and we have seen that reality play out many times throughout history.

Traditionally, campaign finance disclosure laws have been aimed at large donors in attempt to cast light on who is greatly influencing the political process. Today, however, with means available through the internet and technology, political donors of the smaller variety can and do have a much greater impact in the aggregate than they have had in the past. But it is also these technologies that make campaign finance information so readily available. The databases are accessible, searchable, sortable, and downloadable. In effect, they are ready to be used by anyone that would like to disseminate the data for any purpose.

The biggest recent example of disclosure information used for retaliatory purposes is the dissemination of information about people who supported California’s Proposition 8, a ballot initiative to protect traditional marriage. The initiative was approved by a majority of California voters, but it was widely reported that an organized attack on California’s voters was launched by opponents of Proposition 8. Using information submitted through disclosure requirements and disseminated via the internet, opponents targeted the financial backers of Proposition 8 with harassing and threatening phone calls, emails, and vandalism of personal property. The Directors of the California Musical Theater in Sacramento and the Los Angeles Film Festival both resigned from their positions after their financial support for Proposition 8 was disseminated over the internet along with a campaign to boycott their respective organizations and events.

Those who contributed financial support in favor of Proposition 8 were forced to file suit to have their names and addresses taken off of the internet because of the attacks they experienced. Unfortunately, that did not fully remedy the political retaliation. In early April of this year, the online dating site OkCupid decided to make an issue out of Mozilla CEO and founder Brendan Eich’s $1,000 contribution he made in support of Proposition 8—more than half a decade ago. OkCupid began blocking users who accessed the site using the Mozilla Firefox internet browsers, displaying a message that read:

Mozilla’s CEO is an opponent of equal rights for gay couples. We would therefore prefer that our users not use Mozilla software to access OkCupid

The political pressure resulted in Mr. Eich’s resignation from the company that he helped found. Mr. Eich never engaged in discrimination at Mozilla and never made his personal views on marriage a point of importance at the company, much less a company policy. He simply contributed $1,000 to a cause that most Californians believed in, and felt enough pressure from the focused political retaliation campaign of Proposition 8 opponents to resign.

Private political retaliation is not the only fear. Public sector agencies and officials are increasingly engaging in political retaliation as well. Members of this Committee should consider the public castigation of the Koch brothers by Senator Harry Reid and others because of their choice to actively engage in political speech. Consider also the Internal Revenue Service’s treatment of conservative groups applying for tax-exempt status during the last Presidential election cycle.

The fear of political retaliation – whether at the hands of private citizens or government officials — has led many to question the necessity of more disclosure, especially in light of the competing interests of free association and dissemination of ideas. U.S. Supreme Court Justice Samuel Alito expressed his fears in Doe v. Reed, a case dealing with anonymous political speech. In his concurring opinion, Justice Alito expressed his fear that disclosure requirements may enable political opponents “to locate and contact [people on the other side of a divisive issue]” and, thus, the disclosure “becomes a means of facilitating harassment that impermissibly chills the exercise of First Amendment Rights.”

Opinions on this issue are also changing among the popular press. Dr. Charles Krauthammer, for example, has been a long-time advocate of unlimited political contributions with total and complete disclosure. However, Dr. Krauthammer appears to be reevaluating that position in light of the Brendan Eich incident, writing on April 17 that he:

…had not foreseen how donor lists would be used not to ferret out corruption but to pursue and persecute citizens with contrary views, which corrupts the very idea of full disclosure.

Even public opinion on disclosure appears to be shifting. Richard Briffault, a professor of legislation at Columbia Law School, explained in a recent law review article how small donors of the internet contribution variety are deterred from participating in the political process when disclosure becomes part of the picture. Specifically, Professor Briffault states:

[M]any a small and less committed donor might be unsettled if she knew that her political affiliations were being revealed to coworkers or neighbors. One recent study found that support for disclosure drops sharply when the respondent is asked whether she believes that her own name, address, and contribution amount should be posted on the internet—and drops still further when asked whether her employer’s name ought to be on the Internet, as many states require.

It is all of these concerns that make today’s topic so important. The Committee is charged with studying which “groups are exempt from reporting requirements in the Election Code” and making “recommendations on how to make the political process more transparent.” The initial reaction to those charges, for many people, is to require more disclosure and more reporting. We saw an attempt to go down that path and increase reporting requirements during the 83rd Legislative Session, specifically in the form of Senate Bill 346, which passed both houses, but was ultimately vetoed by Governor Perry.

As an initial matter, SB 346 was redundant at times, and confusing at others. The bill defined “political contributions” as payments to the group being regulated (including dues fees) which the donor had “reason to know” would be used either to make political contributions or expenditures, or comingled with funds for those purposes. Incidentally, the definition of “political contribution” in the bill included the term “political contribution”, rendering the definition unclear, at best. Moreover, the bill would have created an unnamed new class of persons bound by an entirely new set of reporting requirements, many of whom are already regulated under extensive federal and state laws. Also important is that SB 346 was layered with confusing exemptions and targeted effects, such as a special exemption for labor organizations.

Perhaps most important is that additional layers of law and regulation chill speech and political participation. Governor Perry referenced that point on May 25, stating when he vetoed the bill:

Freedom of association and freedom of speech are two of our most important rights enshrined in the Constitution. My fear is that Senate Bill 346 would have a chilling effect on both of those rights in our democratic political process.

Political transparency is an important issue, but we should be mindful that in recent practice, disclosure laws have increasingly pitted transparency against participation in the political realm. Complaints of outside money and dark influences are grounded in good intentions, but passing legislative proposals – like SB 346 – in attempt to shed light on their sources has the unintended consequence of discouraging speech and public discourse. When it comes to private organizations and individuals, the main justification for campaign finance disclosure laws—quid pro quo corruption—is largely absent. Additionally, even though donors may remain anonymous, they speak with one voice through organizations with very public messages and agendas, leaving nobody to wonder what their intentions are.

Furthermore, it doesn’t really matter who is speaking because the message is public, and voters are capable of deciding for themselves whether or not a message has merit. In today’s technological climate, people are able to confirm or disprove facts within seconds, and disseminate those discoveries equally fast. When voters see or hear a political advertisement, they don’t ask “who’s saying that?” Rather, they ask “is that true?”

As for the Election Code, instead of adding another layer to already confusing disclosure requirements, the Legislature should explore ways of cleaning up the Code. The best way to make it more transparent is for people to understand it and understand how it works. Make it shorter, clearer, and simpler.

Thank you for the opportunity to appear before this Committee today.