Politics Needs Privacy | Commentary

Posted April 3, 2015 at 10:00am

By Luke Wachob Crusaders against “money in politics” apparently didn’t learn any lessons from the IRS scandal, in which the tax man decided to play speech police and ended up trampling over taxpayers’ civil liberties. To mark the one-year anniversary of the Supreme Court’s pro-First Amendment ruling in McCutcheon v. FEC, they are delivering petitions to the White House, once again urging the executive branch to take the law into its own hands.  

The petitions call on President Barack Obama to unilaterally mandate, via an executive order, burdensome new reporting requirements for companies that contract with the government. Notably, this has nothing to do with McCutcheon, which struck down arbitrary limits on the overall amount individuals are allowed to give to candidates and political action committees – entities that fully report their contributors and spending.  

This isn’t the first time activists have seized on an ill-suited spotlight to attack political speech. Just last month, Public Citizen’s Lisa Gilbert took to the pages of Roll Call arguing that a throwaway line in the President’s 2015 State of the Union Address demonstrated his support for the executive order (“Taxpayer Dollars and Disclosure in Politics ”), ignoring the inconvenient truth that the Obama administration already considered and rejected such a plan in 2011.  

What the White House understood then that must be remembered now is that injecting information about companies’ political associations into the contracting process makes politics more corrupt, not less. Assembling a database of companies’ political spending is counterproductive if you want government contracts to go to the most deserving bidder rather than the most loyal donor.  

We need only look to February for an example of how this deprivation of privacy corrupts politics. In a committee hearing, Washington State Senator Pam Roach vindictively called out companies that had supported her general election opponent and seemed to threaten retaliation against them. “You need to know where your money’s going,” she told them. “Because you know what? I won.” The message to would-be contributors was loud and clear: do not support my challengers if you want to work with my office.  

Roach’s implicit threat of retaliation against her opponents is the antithesis of how government should behave in a democracy and a stern rebuke to proponents of such an executive order. Government should never punish people or companies for supporting the “wrong” candidate – it should seek to do the best job for everyone. But in politics, we know that people will be vindictive and petty, and that’s why private association is so crucial. Coupled with freedom of speech, it allows individuals and groups – including companies that seek to contract with the government – to seek changes in government policies without suffering retaliation from incumbent politicians or bureaucrats who might seek to please their appropriators.  

It is no surprise, then, that politicians use the nefarious-sounding term “dark money” to demonize such speech. In reality, anonymous speech and private association bolsters democracy. Famous texts like Common Sense and The Federalist were authored anonymously. Groups like the NAACP fought for the right to keep their members’ identities a secret while fighting for laws that secured civil rights. And even as today’s pundits exaggerate the impact of “floods” of “dark money” in elections, groups that do not report the private information of their supporters to the government accounted for less than 5 percent of total political spending in 2012, and again in 2014. That spending is a good thing – advocacy groups play a vital role in providing valuable information to lawmakers and the public.  

In addition to promoting a misguided and unnecessary policy, Gilbert seems confused about the nature of the President’s remarks. He did not criticize all advertisements by groups that do not itemize their donors, only those that “pull us into the gutter,” instead of “lifting young people up, with a sense of purpose and possibility, and asking them to join in the great mission of building America.” This is a call to soften rhetoric and promote civility in politics, not to chill speech by increasing government reporting requirements through administrative fiat.  

In any event, activists’ obsession with “dark” and “secret” money in politics represents a clear breaking from American democracy’s fundamental bedrock principles. Privacy and protected free speech are not burdens to bear or veils to pierce, but rights to celebrate, including at the most important juncture of all: when doing business with the U.S. Government.  

Luke Wachob is the McWethy Fellow at the Center for Competitive Politics.

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