American Enterprise Institute: Overruling Citizen's United With Chicago-Style Politics
Following a defeat in Citizens United, the Obama administration is making an unprecedented assault on free speech through a proposed executive order requiring federal bidders to disclose their political giving during the previous two years as a condition to being considered for a federal contract
This memorandum addresses the matter of how we can maximize the fact of our incumbency in dealing with persons known to be active in their opposition to our Administration. Stated a bit more bluntly--how we can use the available federal machinery to screw our political enemies. . . . The project coordinator should then determine what sorts of dealings these individuals have with the Federal Government and how we can best screw them (e.g., grant availability, federal contracts, litigation, prosecution, etc.)."(1)
--Excerpt from memorandum dated August 16, 1971, from John Dean to Lawrence Higby
"Therefore, in order to increase transparency and accountability to ensure an efficient and economical procurement process, every contracting department and agency shall require all entities submitting offers for federal contracts to disclose certain political contributions and expenditures that they have made within two years prior to submission of their offer. Certification that disclosure of this information has been made in the manner established by the Federal Acquisition Regulatory Council (FAR Council) pursuant to Sec. 4 shall be required as a condition of award."(2)
--Excerpt from "Disclosure of Political Spending by Government Contractors," draft executive order, April 13, 2011
Key points in this Outlook:
* Following a defeat in Citizens United, the Obama administration is making an unprecedented assault on free speech through a proposed executive order requiring federal bidders to disclose their political giving during the previous two years as a condition to being considered for a federal contract.
* Under the guise of "transparency" and "accountability," the order curtails constitutionally protected speech rights and opens the door for retaliation against those not supporting the administration politically.
* Neither the media nor defenders of free speech are challenging the administration's actions, but anonymous political speech should remain a cornerstone of American democracy.
Four decades separate these two statements, and they come from opposing political parties. But they share an identical purpose. While "transparency and accountability to ensure an efficient and economical procurement process" certainly has a higher tone than "how we can use the available federal machinery to screw our political enemies," the distinction is purely semantic. After all, what other possible purpose could exist for a presidential executive order mandating disclosure of political contributions two years prior to the bid on a federal contract?(3)
Moreover, as a weapon to silence political speech, the proposed executive order is striking in its sweep and boldness. Nixon aide John Dean proposed a modest beginning, suggesting "not more than ten" targets for his first enemies list. In contrast, the draft executive order requires every one of the millions of federal contractors--whose business totals more than half a trillion dollars per year(6)--to disclose their political contributions and expenditures to advocacy groups.(7)
The Framers clearly understood the rights of speech and press to include the right to speak about politics anonymously.
The pretext, of course, is that sunlight disinfects, so disclosure and transparency are regularly prescribed as a political wonder drug. If a small dose is good, a big dose is better. Financial institution chicanery? Total transparency should fix that. Campaign spending abuses? Disclosure and reporting, all put up on the Internet. After all, who could possibly object to mandatory transparency and full political disclosure?
The Founding Fathers, for starters.
Anonymous political speech is as American as Publius, the nom de plume used by Alexander Hamilton, John Jay, and James Madison for their anonymous series of newspaper articles, now known as the Federalist Papers.(8) For American debate on political issues both before and after ratification of the Constitution, anonymous political speech was the rule, not the exception.(9) But in today's supercharged political atmosphere, are not compulsory disclosure and transparency essential to a responsible political discourse?
No. Indeed, disclosure of political contributions may be a prelude to the thuggish suppression of political speech by harassment and intimidation. Witness the recent battle over California's Proposition 8, which barred gay marriage.[(10) A federal court refused to block disclosure of the names, addresses, and employers of Prop 8 donors.(11) Gay marriage proponents promptly made a "mash-up" of Google maps and Prop 8 donors, creating a website that provided a literal roadmap to donors' homes.(12) Death threats (for example, "Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter")(13) and intimidation followed. Some Prop 8 supporters were fired from their jobs, some had their businesses boycotted, and others had their -property destroyed or defaced.(14) Two religious organizations received envelopes containing a white powdery substance(15) In other contexts, groups opposed to biotechnology, medical, and agricultural research have used similar intimidation, harassment, and even terrorist tactics against university and corporate officials and scientists. Mandated disclosure of financial support for a political viewpoint can become the springboard for lawless retaliation against citizens for holding unpopular views.
In this Outlook, we will examine the ways in which "disclosure" and "transparency" are being used to silence core First Amendment speech rights and to threaten America's long protection of anonymous political speech. We will focus on hardball tactics aimed at nullifying the recent Supreme Court decision in Citizens United, which struck down, on First Amendment grounds, McCain-Feingold Act (Bipartisan Campaign Reform Act, or BCRA) limits on corporate and union funding of independent political broadcasts. We will demonstrate that the draft executive order under review, current Federal Election Commission (FEC) proposals to expand disclosure requirements, and the recent rulemaking petition asking the Federal Communications Commission (FCC) to regulate political advertising all have a single goal: to stifle the First Amendment speech rights of political opponents.
To put these recent political actions in constitutional context, this Outlook will then trace the colonial origins of anonymous political speech and survey the Supreme Court decisions protecting anonymous political speech and association as fundamental American constitutional rights. We will review the two tests--"exacting scrutiny" and the more rigorous "strict scrutiny"--used by the Court to judge any governmental limitation on First Amendment speech, and show that the strict-scrutiny standard used in Citizens United actually portends the expansion of anonymous speech rights.
In the end, we will demonstrate that First Amendment- protected speech cannot be debilitated by "transparency" or "disclosure" requirements or new regulatory gymnastics devised to kill it. As the Supreme Court declared in New York Times v. Sullivan, Americans have "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."(16) Attempting to pierce the veil of anonymity of those who wish to speak without identification can only undermine the effectiveness of the marketplace of ideas, upon which the success of American democracy depends. "The First Amendment," Justice William Brennan wrote for the Sullivan Court (quoting Judge Learned Hand), "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all."(17) Anonymous political speech is a core constitutional right and an indispensable cornerstone of American democracy.
Reactions to Citizens United
On January 27, 2010, millions of television viewers witnessed an extraordinary face-to-face constitutional debate between a sitting president and a Supreme Court justice. The confrontation was short--only two words on the justice's side--and unequal, as only one debater had a microphone. But it was an unforgettable moment in President Barack Obama's State of the Union address.
Blasting the Supreme Court's decision in Citizens United, the president said, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests--including foreign corporations--to spend without limits in our elections."(18) Only a few yards away, Associate Justice Samuel Alito, bespectacled and black-robed in the ornate House chamber, winced, shook his head, and mouthed the words "not true."(19)
As it turns out, Alito was correct. The section of the McCain-Feingold Act overruled by Citizens United prohibited all corporations and unions from broadcasting "electioneering communications," which are defined as communications that mention a candidate within sixty days of a general election or thirty days of a primary.((20) In striking down this provision, the Court concluded that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt."(21) Citizens United did not change existing federal law that prohibits foreign corporations from making direct or indirect donations, expenditures, or electioneering communications in federal, state, or local elections.(22)
But most importantly, Citizens United reaffirmed that core First Amendment speech rights cannot be muzzled by governmental regulation, even regulations that prescribe the wonder drugs du jour: disclosure and transparency. Rather than an abrupt sea change in constitutional law, Citizens United reaffirmed the mainstream of First Amendment cases recognizing the importance of unfettered speech during elections. In Buckley v. Valeo, the Supreme Court's first major federal campaign law decision, the justices made clear that expenditures on political advertising constitute protected speech under the First Amendment and were to be treated differently than political contributions.(23) In Buckley itself, the Court struck down Congress's efforts to impose spending caps on individuals, and in the years since tossed out similar limits on political action committees (PACs) and political parties.(24) And just two years after Buckley, the justices had rejected state efforts to prevent corporations from contributing to political campaigns or spending on political advertising.(25) "If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech," the Court observed in First National Bank of Boston v. Bellotti. "It is the type of speech indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual." Bellotti presaged Citizens United: "The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual."(26)
Two cases--the 1990 Austin v. Michigan Chamber of Commerce and the 2003 McConnell v. Federal Election Commission, which upheld restrictions on corporate contributions and expenditures--created the aberrations in the fabric of the First Amendment. But for all the controversy over Citizens United, this decision merely put the Supreme Court back on the track it had pursued for decades in protecting the right to political speech without regard to the speaker's identity. The BCRA's prohibition on independent corporate expenditures "is a ban on speech," the Court observed, because limiting spending "necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached."(27) Government prohibition of any election speech would allow it to manipulate the way that American democracy holds its government accountable. "Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process."(28) It did not matter whether the speaker was a corporation, union, or person. "All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech," wrote Justice Anthony Kennedy for the majority. "The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker's ideas."(29) Congress's effort to ban corporate expenditures on political advertising was "censorship" pure and simple, and "unlawful" under the First Amendment.(30)
Citizens United reaffirmed that core First Amendment speech rights cannot be muzzled by governmental regulation, even regulations that prescribe the wonder drugs du jour: disclosure and transparency.
But in his State of the Union, Obama was not interested in constitutional niceties. Rather, he aimed to nullify the Supreme Court decision in Citizens United, a campaign that has sharply intensified since. Having slammed the Supreme Court decision as a "green light to a new stampede of special interest money in our politics," the president promised a "forceful response."(31) That came promptly, in the form of a proposal named the DISCLOSE Act (Democracy Is Strengthened by Casting Light On Spending in Elections).(32) Introduced in February 2010, this measure would have prohibited government contractors from making independent political expenditures and electioneering communications, and required disclosure of these types of expenditures by everyone else.(33) The proposal would have forced all those doing business with the government to give up their ability to participate in the political process, as is their right under the First Amendment, aside from just voting on Election Day. After two failed attempts at passage, the DISCLOSE Act died in the Senate.(34)
Having failed to reverse Citizens United by legislation, the administration tried regulation. But the FEC, with jurisdiction over the issue, deadlocked over a proposal requiring expanded disclosure in political advertising.(35) Moreover, the FEC's recent history of unsuccessful commissioner nominations makes it unlikely that the full commission will resolve this issue anytime soon. Seeking to involve the courts, Representative Chris Van Hollen (D-MD) sued the FEC, bemoaning the post-Citizens United "absence of transparency" and demanding new FEC political-disclosure requirements.
The FEC deadlock gave the FCC an opening to grab for new jurisdiction. A tired old New Deal agency, the FCC is approaching its eightieth birthday(36) and had been seeking new regulatory turf even before the DISCLOSE Act died. The Internet seemed like a promising target, except that the Communications Act of 1934 failed to anticipate the Internet's creation, and thus also failed to grant the FCC clear authority over it. No matter. Under Chairman Julius Genachowski, the FCC seems determined to regulate like it is 1934 again--even considering the absurd possibility of pronouncing the Internet to be a "public utility" to get jurisdiction over it. In December 2010, ignoring a unanimous federal court of appeals -decision issued only months earlier denying the FCC's legal authority to impose a "net neutrality" policy on Comcast, the agency nevertheless issued net neutrality rules applicable to everyone, "to protect basic Internet values."(38) One critic called the new net rules "a solution in search of a problem."(39)
Now, thanks to a rulemaking petition filed before it in March 2011, the FCC may be considering the possibility of joining the FEC in regulating political speech. The petition, filed by the Media Access Project, asks the FCC to require on-air disclosure of the names of donors who provide 25 percent or more of the funds for political ads, plus written disclosure of all donors who provide 10 percent or more.(40) If implemented, this proposal would greatly expand the current FEC disclosure requirements and chill political speech, while creating a potent new role for the FCC. The FCC, of course, is an independent regulatory agency, but Genachowski bundled more than $500,000 for Obama's 2008 presidential campaign and has visited the White House more than eighty times.(41)
The president, however, is not waiting for the FCC. Evidently believing that he can reverse Citizens United by naked presidential fiat, Obama issued a sweeping executive order that not only would require disclosure of political contributions by government contractors, but also would mandate the disclosure of individual political giving in excess of $5,000 by their officers and directors.(42) Yet the proposed executive order, tellingly, does not impose any new disclosure requirements on anonymous political contributions by labor unions. Most audaciously, it would require disclosure of contributions to "third-party entities"--the Sierra Club or the National Rifle Association, for example--that might make their own "independ-ent expenditures or electioneering communications."(43)
Where would all this political disclosure go? Not to Big Brother, but close enough. According to the executive order, the political disclosure "shall be made publicly available in a centralized, searchable, sortable, downloadable, and machine readable format on data.gov as soon as practicable." What then?
On bitterly divided issues, disclosure invites retaliation. The Prop 8 battle is instructive. Political opponents will merge the data.gov disclosure into Google maps, creating an instant hit list for those who disagree with the donors' political views. Expect harassment and retaliation to follow--which is what happened to Target. After disclosure of a contribution by the retailer Target to MN Forward, a conservative Minnesota political group that supported a gubernatorial candidate who was opposed to gay marriage, proponents demanded that Target also support pro-gay candidates. Target refused.(44) MoveOn organized a widespread boycott and flash mobs appeared at Target stores; the retailer countered by suing pro-testers.(45) In the seconds it took for a Facebook video of the boycott to go viral, Target's established reputation as a gay-friendly company was shredded.(46) After institutional investors protested the "misalignment" between Target's Minnesota political spending and its professed corporate values, Target announced that future political contributions would require the approval of an internal policy committee.
The intimidation inherent in the president's proposed executive order is triggering bipartisan reaction. Senate Minority Leader Mitch McConnell (R-KY) said, "No White House should be able to review your political party affiliation before deciding if you're worthy of a government contract."(47) Representative Steny Hoyer (D-MD) stated, "The issue on contracting ought to be on the merits of the contractors' bids and capabilities. I think there are some serious questions as to what implications there are if somehow we consider political implications in the context of awarding contracts."(48) Representative Darrell Issa (R-CA), chairman of the House Committee on Oversight and Government Reform, said contractors fear "a corrupt Chicago-style spoils system where contracts are tied to partisan political affiliations."(49) Senator Claire McCaskill (D-MO) and Senator Joe Lieberman (I-CT) also wrote to the president questioning the new executive order.(50)
Ironically, despite Obama's warning that the anonymous political speech permitted under Citizens United "strikes at our democracy itself,"(51) Democrats gearing up for 2012 have suddenly decided to indulge in a dose of it themselves. In April, the Los Angeles Times reported that Democrats have formed two new entities, Majority PAC and American Bridge 21st Century, both affiliated with nonprofit 501(c)(4) groups that can raise money from undisclosed donors and give money directly to super PACs.(52) "Politics is a prize fight," said a spokesman for American Bridge, "and when you're getting pounded in the ring, you don't complain to the ref, you fight back."(53)
The History of Anonymous Political Speech Protection
The tactic of rewarding friends and punishing political enemies is, of course, not a new one, and the Framers were acutely aware that criticizing government could have severe consequences. This is precisely why anonymous speech has deep roots in American politics, going back to the foundations of the Republic. Most political speech during the time of the framing of the Constitution occurred through pamphlets and small newspapers published by dozens of independent printers throughout the newly independent states. Indeed, one of the seminal events that led to the Framers' understanding of freedom of speech and the press--the seditious libel trial of John Peter Zenger--involved the British prosecution of a colonial printer who refused to identify the author of attacks on New York's royal governor.
Anonymous speech continued to serve as the central vehicle for discussing politics both before and after the ratification of the Constitution. Thomas Paine signed Common Sense, the most circulated book in the colonies of its day, with "Written by an Englishman." Publius was only one of the prominent defenders of the Constitution to publish anonymously during the ratification debates. Leading Anti-Federalists also assumed pseudonyms, writing under names such as the Federal Farmer and Brutus. The practice of anonymity continued after the Constitution's approval, too. The great debate between Hamilton and Madison over the constitutionality of President George Washington's proclamation of neutrality occurred under the pseudonyms of Pacificus and Helvidius. At the time of the Framing, authors of political writing universally used pseudonyms to conceal their identities.(54)
Our Framers practiced anonymity for reasons directly engrained in the First Amendment. First, anonymity protected a speaker against reprisal by the government or the majority for unpopular views. Revolutionaries could have been prosecuted for seditious libel or even treason for urging rebellion. Anti-Federalists feared that Federalists would seek their identities to suppress dissent to the new Constitution. The Framers who won the inclusion of a Bill of Rights and the First Amendment--the Anti-Federalists--were the ones who took the most advantage of anonymity.
The groups that would be most harmed by a ban on anonymity would be those with the most unpopular views.
Second, anonymity concentrated attention on the merits of the speech, and not its form. Many Framers discarded the prestige of their name and rank to defend their positions; they preferred that the message not depend on the messenger. Anonymity signaled confidence in the worth of the argument standing alone. Third, anonymity itself conveyed substantive content. The Framers chose their pseudonyms carefully. Anti-Federalists, for example, wrote as Cato and Brutus to invoke Roman leaders famous for their republican virtue.
Given this widespread practice, the Framers clearly understood the rights of speech and press to include the right to speak about politics anonymously. An effort to force authors to disclose their true identities would have been widely viewed as a violation of the most basic constitutional freedoms.
Not surprisingly, the Supreme Court has recognized for decades the importance of political speakers to be free from government compulsion. Anonymous election speech, in the words of the Court, enjoys "an honorable tradition of advocacy and of dissent," and anonymity serves as "a shield from the tyranny of the majority."(55) Indeed, the groups that would be most harmed by a ban on anonymity would be those with the most unpopular views--today's supporters of Proposition 8 in California or the 1950s members of the civil rights movement. But it is exactly those viewpoints that receive the most protection from the First Amendment, for without them the First Amendment would fail to provide a forum for the robust exchange of views necessary for effective self-government.
National Association for the Advancement of Colored People (NAACP) v. Alabama provides not only the first, but also the most important example of the importance of anonymity for the protection of political dissenters who associate in political groups.(56) Alabama sought to force its local NAACP regional office to produce its membership lists as part of a coordinated effort to shut down the activities of the civil rights group. A unanimous Supreme Court blocked Alabama's law because it would infringe on the rights to association and privacy, which were critical means to the freedom of speech. An effort to force groups to disclose their supporters would trample this right. "It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association" as taxes or government investigations targeted at unpopular groups.(57) Production of the NAACP's roster, the Court worried, could lead to retaliation by the government or the majority, which would "affect adversely the ability of (the NAACP) and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate."(58) In the years since NAACP v. Alabama, the Court has steadfastly protected political speakers from government efforts to force the disclosure of their identities.(59)
Of late, constitutional respect for the anonymity of individuals who organize to engage in political speech has collided with aggressive efforts to regulate the electoral process. In Buckley v. Valeo, the Supreme Court recognized that the First Amendment protected financial contributions to organizations, just as much as membership, for the purposes of political activity. "The right to join together for the advancement of beliefs and ideas is diluted if it does not include the right to pool money through contributions, for funds are often essential if 'advocacy' is to be truly or optimally 'effective.'"(60) Nonetheless, Buckley upheld the compelled disclosure of financial contributors to the major political parties because it advanced a sufficiently important government interest in maintaining the "free functioning of our national institutions." Disclosure, according to the Court, provides more information to the electorate on the position of candidates, deters "actual corruption" and avoids "the appearance of corruption" through "the light of publicity," and provides data to detect violations of campaign giving limits.(61) Since Buckley, federal courts have subjected regulations of campaign-related donations and speech to "exacting scrutiny" and will uphold them only if "the strength of the governmental interest . . . reflects the seriousness of the actual burden on First Amendment rights."(62)
We believe that Buckley's compromise of free speech rights strays from the Framers' vision for the First Amendment and its protections of the right to privately organize to engage in political speech. It is difficult to imagine that Hamilton and Madison, writing together as Publius, would have accepted a legal regime where they had to reveal their identities before they could publish their writings. But even those who believe that Congress can limit financial contributions can agree with Buckley that expenditures on political advertising qualify as pure speech that does not threaten to corrupt the political process as does campaign cash. Even if we agreed with the Court's campaign finance precedents, recent cases properly raise serious doubts about their continuing vitality. In Citizens United, the Court overturned its earlier decisions that had approved spending limits on the election-related speech of corporations and unions.(63) The Court raised the bar for restrictions on campaign speech to strict scrutiny: the government regulation must advance a compelling government interest that is narrowly tailored to achieve that interest. Regulations of speech rarely, if ever, survive the strict scrutiny test, and the limits on corporate and union speech were no exception. These unconstitutional portions of the BCRA had relied on the same justifications as the compelled disclosure requirements in Buckley: dispelling corruption or the appearance of corruption from the political process. This goal, according to the Court, could not support the government's interference with the open marketplace of ideas protected by the First Amendment, which thrives on the participation of many different individuals, groups, and perspectives without favor from the state.
The possibility that Internet technology might be used to harass those who support unpopular causes provides the basis for a powerful First Amendment challenge against government restrictions on privacy in association and speech.
To be sure, the same Court that struck down the campaign spending limits in Citizens United has looked with a less hostile gaze on disclosure requirements related to electoral procedures. In Citizens United itself, the majority upheld the BCRA's requirement that political ads contain a disclaimer that discloses the group paying for them. Such disclosure requirements, the Court observed, are subject to the lesser standard of "exacting scrutiny," rather than strict scrutiny, and might survive if the government has a sufficiently strong interest in providing more information to voters. And in John Doe #1 v. Reed, a majority of the Court upheld a Washington State law that required the release of the names and addresses of voters who had signed a petition supporting an initiative to ban gay marriage. It noted that a disclosure requirement "may burden the ability to speak, but does not prevent anyone from speaking."(64)
This line of cases would provide little support for restrictions designed to interfere with pure political speech. In Reed, the justices upheld the disclosure because of the government's important interest in verifying whether the initiative had reached enough valid signatures to be placed on the ballot--what they called the "state's interest in preserving the integrity of the electoral process"--and preventing confusion about the source of campaign speech. Government can even compel the limited disclosure only when protection of the integrity of the electoral process is at stake. Government contracting rules, by contrast, have nothing to do with the official operation of elections, nor does disclosure of giving have anything to do with an efficient purchasing system. The Obama administration's order can only regulate companies that do business with the government; the executive has no unilateral constitutional power in the absence of a congressional statute to impose rules on the political system. The president's executive order amounts to an unconstitutional attempt to leverage its administration of government purchasing into power over a wholly different and unrelated area.
Both Citizens United and Reed further stand as little support for efforts to use government contracting rules to force disclosure of political activity. They reemphasized the central importance of NAACP v. Alabama. In both cases, the challengers of compelled