Anonymous campaign speech for me, but not for thee

The Prop. 211 oral argument illustrates the intellectual cul-de-sac jurisprudence about the relationship between free speech and campaign finance has found itself in.

Veteran court watchers say not to read too much into oral arguments. However, the oral argument before the Arizona Supreme Court in a case challenging the constitutionality of Proposition 211, the dark money initiative, would suggest that several justices are considering striking it down in whole or in part.

There was a lot of discussion about the extent to which disclosure of large contributions to independent election campaigns would lead to threats, retaliation, and other forms of harassment. It was a revealing illustration of the intellectual cul-de-sac jurisprudence about the relationship between free speech and campaign finance has found itself in.

In reality, there is nothing in the text or history of the First Amendment or the Arizona Constitution’s free speech clause that grants, or implies, the right to make large anonymous contributions to influence the outcome of elections. Nor to be immune from the thrust and parry of political and campaign discourse and interaction, which can certainty be unpleasant. Where it is more than unpleasant, there are laws that proscribe and protect against unacceptable behavior – in all contexts, not just for making a large campaign contribution.

The norm in American politics is for disclosure of campaign contributions and expenditures. No one seriously argues that these general disclosure requirements violate the federal or state free speech clauses. The principle is that voters should have the ability to know who is trying to influence their vote.

After Citizens United, which held that corporations had a right to engage in express advocacy in candidate elections, a dodge from disclosure was created. Contributors could conceal their donations behind the corporate veil and never be revealed to the public.

Proposition 211 was an attempt to partially pierce the corporate veil. Organizations that spend over $50,000 in voter communications have to disclose contributions of $5,000 or more.

It’s worth reviewing the disclosure landscape. Contributions to candidate and ballot campaign committees are public records. Anyone who directly contributes to a candidate or ballot campaign committee is publicly revealed and is subject to whatever reaction that generates, including threats, retaliations, and harassment. Only general laws drawing the line about unacceptable behavior protect them.

So, if the free speech clauses permit this disclosure and the potential consequences thereof, how do they also mandate that a special class of donors to so-called dark money groups be granted immunity from even milder and more circumscribed disclosure requirements? That’s the intellectual cul-de-sac.

At the country’s founding, there was certainly a robust practice of pseudonymous political polemics. However, there wasn’t a generalized practice in favor of anonymous political participation. In fact, voting itself was a public act. Everyone knew how everyone else voted. And there were consequences. Political threats, retaliations, and harassment aren’t 21st Century inventions. The secret ballot didn’t become the norm until the 1890s.

Here is another intellectual cul-de-sac. All sorts of protected speech can engender adverse reactions, including threats, retaliations, and harassment. When I was writing opinion columns for the Arizona Republic, a woman wrote to say that, due to my anti-woke views, she was organizing a campaign to get me fired. I responded by wishing her luck and giving her the contact information for the two senior managers at the Republic who could effectuate her objective.

Given the rough and tumble associated with all sorts of free speech activities, how do the free speech clauses mandate that some sort of special safe space be carved out for a selected subset of large donors to independent expenditure campaigns?

We live in a period of rising political violence. But there are laws against that and other forms of threats and harassment. It would be productive to evaluate whether they should be buttressed.

However, the free speech clauses don’t stand for the proposition that the overwhelming number of people who engage in protected activities have to run the risks associated with them, but a small number of large donors to independent expenditure campaigns do not.

The case for anonymous political speech tends to come from the libertarian right, in whose ranks I am usually to be found. I find intellectual comfort in that my views about these matters were also those of the late Justice Antonin Scalia, the original originalist. He believed that the First Amendment, properly understood, prohibited limits on campaign contributions and expenditures. However, it did not confer a right to anonymous campaign speech.

His concurring opinion in Doe v. Reed has been frequently cited, but is worth citing again in this context: “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

Reach Robb at robtrobb@gmail.com.