Sunday, February 25, 2018
Perspective

A war against facts

Someday political scientists will try to date the decline of reasoned discourse in America to the moment when the left and the right began to invent their own facts.

Climate change deniers, the purveyors of lies linking abortion to breast cancer, and creationists will all be blamed for the end of meaningful debate between liberals and conservatives. But that's not quite right. The real end of civic discourse can be traced to the new conservative argument that facts themselves are dangerous.

It's a dangerous contention not just for what it hides, but also for what it reveals: a lack of any other arguments.

It's tough times for facts in America. First Mitt Romney — interviewing for the position of president — declined to release his tax returns because, as he explained, the Obama team's opposition research will "pick over it" and "distort and lie about them." He isn't actually claiming that his opponents will lie. He's claiming he's entitled to hide the truth because it could be used against him.

As Jon Stewart put it, "You can't release your returns, because if you do, the Democrats will be mean to you." These are tax returns. Factual documents. No different than, say, a birth certificate. But the GOP's argument that inconvenient facts can be withheld from public scrutiny simply because they can be used for mean purposes is a radical idea in a democracy. It has something of a legal pedigree as well.

Probably not coincidentally, this month Senate Republicans filibustered the Disclose Act — a piece of legislation many of them once supported — again on the grounds that Democrats might someday use ugly facts against conservatives. The principal objection to the law is that nasty Democrats would like to know who big secret donors are in order to harass, boycott and intimidate them.

The law requires that unions, corporations and nonprofit organizations report campaign-related spending over $10,000 within 24 hours, and to name donors who give more than $10,000 for political purposes. Even though eight of the nine justices considering McCain-Feingold in Citizens United believed that disclosure is integral to a functioning democracy, the idea that facts about donors are dangerous things is about the only argument Senate Republicans can muster.

Recently, Justice Antonin Scalia told CNN's Piers Morgan that "Thomas Jefferson would have said the more speech, the better. That's what the First Amendment is all about. So long as the people know where the speech is coming from."

That's a ringing defense of the need for disclosure, which Scalia has always supported. Yet GOP senators aren't brave enough to have true facts on display anymore. For Republicans, the truth is almost Nixon-esque now.

Here's Senate Minority Leader Mitch McConnell comparing the disclosure requirements to an "enemies list" this month: "This amounts to nothing more than member and donor harassment and intimidation, and it's all part of a broader government-led intimidation effort by this administration. There are parallel efforts at the FCC, SEC, IRS, DoJ, and the White House itself to silence its critics. The creation of a modern day Nixonian enemies list is currently in full swing and, frankly, the American people should not stand for it. As I've said before, no individual or group in this country should have to face harassment or intimidation, or incur crippling expenses defending themselves against their own government, simply because that government doesn't like the message they're advocating."

If those claims sound familiar, it's because these are precisely the arguments donors from the National Organization for Marriage recently raised in an unsuccessful 2009 legal challenge to a California statute that requires political campaigns to disclose the identity of donors who contribute more than $100 to their cause.

Supporters of Proposition 8 — the California same-sex marriage ban enacted with substantial out-of-state financial support, and recently overturned by the 9th Circuit — alleged that disclosing their identities would expose them to harassment by political opponents, and the contested statute cast a cloud of intimidation over the exercise of their protected First Amendment rights.

The California case was brought by James Bopp, a conservative Indiana lawyer, who has relentlessly challenged campaign disclosure laws in the courts with only limited success. Mitch McConnell borrowed a page from his playbook when he warned that forcing deeply established and well-funded groups to make their donations in the bright light of day would invariably bring howling mobs to their doors.

When the Supreme Court sustained disclosure requirements of the Federal Election Campaign Act in 1976, in Buckley vs. Valeo, it held open the possibility that campaign disclosure requirements might be invalid to the extent that they cowed small and traditionally persecuted groups into political silence for fear of retaliation. It drew upon the lessons of the civil rights era and earlier cases involving widespread public and official harassment of advocacy groups such as the NAACP.

Bopp raised those same arguments in California on behalf of the Proposition 8 crowd. But the federal district court was not persuaded. His clients, after all, backed the winners in that election, who spent millions of dollars and gained millions of votes in support of the long-established status quo, "traditional marriage." That is a far cry from the civil rights advocates of the 1960s who risked their lives fighting a centuries-old system of legal discrimination and whose plight the Supreme Court had in mind when it decided Buckley.

Even boycotts of businesses and donors don't constitute the kind of threats opponents of disclosure would suggest. For more than 70 years, the Supreme Court has recognized that nonviolent protests and picketing do not lose their First Amendment protections just because they may result in lost business.

That principle got its strongest exposition 30 years ago, when the high court struck down a state court judgment against the NAACP, which had organized a boycott of white merchants in Claiborne County, Miss., to bring economic pressure to bear in support of integration. Organizers published the names of those who patronized white businesses in an effort to shame the black community into observing the boycott, and some of those patrons were the victims of violence. Despite these facts, the court found both the boycott and the public pressure on those willing to violate it were forms of political speech protected by the First Amendment.

There is a shameful irony in Mitch McConnell and James Bopp attempting to shield the political contributions of the well-funded establishment — indeed, in the senator's case, the economic elite — from public gaze through a doctrine meant to protect the weak and disenfranchised; cynically invoking the legacy of the Edmund Pettus Bridge to let the Koch brothers write their massive checks in private. Overheated rhetoric about violent protest and "enemies lists" is supported by no factual showing. It's a fantasy used to obscure the truth about who is buying and selling our candidates and state referendums.

Three years ago, James Bopp sued the state of Washington, seeking to prohibit the disclosure of names on a ballot initiative that would have put the question of repealing domestic partner benefits just extended to same sex couples to a vote. In 2010, the Supreme Court rejected the plaintiffs' claim that making the names of those who sign petitions public always threatens to silence political speech because signatories might fear retribution.

Eight justices rejected that argument, none of them so strongly as Justice Scalia, whose distaste for political anonymity led him to write separately a warning that merits repetition here, both with respect to the Disclose Act, and the argument that truth must be hidden because some people may be mean someday:

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.

Someone should tell Mitch McConnell.

Dahlia Lithwick writes about the courts and the law for Slate. Raymond Vasvari practices First Amendment law as a partner at Berkman, Gordon, Murray & DeVan in Cleveland. His blog, Somewhere Becoming Rain, deals with the First Amendment, among other things.

© 2012 Slate

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