Although Citizens United struck a blow against the government’s ability to moderate political speech, the “reform” community quickly decided their new tack would be to exploit the decision’s section on disclosure requirements to limit their opponents. The decision, as the New York Times put it:
…actually upheld disclosure requirements, saying that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Disclosure regimes play an important role in determining whether there is a corrupting interest at play. However, there is a line at which point the legitimate role of disclosure is hijacked for the benefit of political opposition.
The Time’s piece goes on to say:
Lower courts have embraced the ruling, with at least nine of them relying on Citizens United to reject challenges to disclosure laws, often in cases involving political spending related to social issues. In particular, courts have rejected efforts by groups opposed to same-sex marriage to keep their supporters and spending secret.
Put another way, you can make the argument that Citizens United has been good for gay rights. “Even Justice Scalia supports donor disclosure,” said Joe Solmonese, president of the Human Rights Campaign, a national gay rights group.
These comments bring to mind comments made earlier by Joe Solmonese in a Huffington Post article:
For some reason, NOM thinks it doesn’t have to comply with the donor disclosure laws,” said Joe Solmonese, HRC President. “NOM’s aggressive legal strategy to keep its donors secret begs the question, what are they hiding? They must realize it’s no longer popular to be openly anti-gay.”
So which is it? Are we encouraging open debate, or are we back to forcing people to withdraw their support for normally unpopular positions? For someone who leads an organization that deals with civil rights, it seems hypocritical that Joe would gloat about using disclosure regulations to impede otherwise lawful contributions the same way Alabama did when it was trying to “wreck” the NAACP during the Civil Rights era.
Disclosure has a legitimate function that serves a public interest; when regulation goes beyond that, the state enables a system ripe for intimidating people with unpopular views. We will never have “open and honest” debate if people have to live in fear of expressing their views.