Wednesday, February 5, 2014

When it comes to politics, no NSA needed

Despite the President’s recent reassurances, Americans continue to question how much government snooping is acceptable in a free society. But in the political arena, the spooks don’t need clandestine technology to monitor our every move. They ply their trade in election boards and commissions throughout the country. No matter how minuscule the expenditure, obscure the speaker, or trivial the issue, political activity is forcibly registered, catalogued, categorized, and published.

These disclosure schemes—touted as public-spirited bulwarks against corruption—trample the First Amendment’s inherent protection of reasonable political privacy. Like the NSA scandal, Americans should awaken to threat government imposes when it acts as an omnipotent ministry of political information.   

Unsurprisingly, Senate Democrats have taken the lead in the fight to publicize every move of their potential adversaries. In addition to the DISCLOSE Act, renewed this Congress by Rep. Chris Van Hollen (D-MD), is Sen. Robert Menendez’s (D-NJ) Shareholder Protection Act. This bill would force public companies to hold votes before management spends any money on politics.

Never mind this idea is too radical for the public-company regulator Securities and Exchange Commission—who late last year refused to initiate rules on corporate political spending—or that shareholders themselves could demand this protection if so desired, or that the very process would likely make the money spent less effective.

And if Sen. Elizabeth Warren (D-MA) has her way, even corporate money given to think tanks would be disclosed, so that it may be properly “evaluated”—by political operatives.

Of course, corporations are not the only ones that must genuflect at the “transparency” alter.

Ann Ravel, new Federal Election Commissioner and formerly head of California’s Fair Political Practices Commission would spare no pajama-clad blogger from the grips of Golden State bureaucrats.

Ms. Ravel left California with a bang. Just before flying East, the FPPC negotiated a colossal one-million dollar fine, settling a case against some nonprofits illegally funneling money into two ballot initiatives. Less well known, however, was her push to require bloggers to publish their funding sources when writing about California elections. After substantial pushback, the FPPC settled on a slightly less burdensome requirement: political campaigns must now divulge all spending for online and social media. California now regulates political tweets.

What about civic-minded citizens using their own money? Unfortunately, courts nationwide have enforced the most onerous compliance and reporting measurers for average-Joe politicos. Last year a federal court upheld Florida disclosure requirements for four people pitching in a mere $150 each to buy radio ads against a ballot measure. In 2012, a federal court in Maine upheld a fine for a political operative spending $91 dollars on a website, active for two months, which criticized a gubernatorial candidate. And last year a court approved the Ohio election board’s decision requiring an activist handing out flyers at the local county fair to register as a political action committee. His main offense seems to have been criticizing the local county boss. 

The social costs of all this transparency is rarely acknowledged. It extinguishes political privacy and chills disfavored speech.

Nearly five years after the 2008 Prop 8 fight in California, a website still mapped out the addresses of those who contributed as little as $85 dollars to support traditional marriage. Even absent legitimate threats to personal safety, those wishing to pool a few hundred dollars together or pass out flyers must either hire a lawyer or spend countless hours learning draconian regulations. Officials in the Florida case admitted their bureaucrats spend months becoming versed in the intricacies of state campaign-finance law.

More disturbing is government misuse of sensitive political information. Ms. Ravel’s signature settlement came with the caveat that one tangentially involved organization, which had acted consistent with California law, would not have their donors publicly released. It got out anyway. And last year the IRS leaked supposedly confidential information about donors of a traditional-marriage nonprofit.

These costs raise important questions about how the First Amendment should interact with government interest in citizens’ political activity. The freedom to speak includes a reasonable right to speak anonymously. But this freedom rings hollow when political actors must check in with Uncle Sam and his numerous state-level nieces and nephews before the slightest public advocacy. No NSA needed.

By Paul Jossey

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