When They Attack ‘Dark Money,’ They’re Really Attacking Free Speech

By adoptingDemocrats are attacking dark money organizations at the confirmation hearings of Supreme Court nominee Ketanji Jackson. Republican senators support efforts to weaken core First Amendment protections.

Sen. Chuck Grassley (R–Iowa), the top Republican on the Senate Judiciary Committee, DenouncedIn his opening remarks, he spoke out about the “roles of far-left black money groups such as Demand Justice”. He wasn’t alone to make this statement. Sen. Lindsey Graham (R–S.C.) MadeIt is unclear if there are any references to “the most libertarian people who fall under the umbrella Arabella.” Prior to the hearing, Senate Minority Leader Mitch McConnell (R–Ky.) criticizedSpend the “dark cash” to “raise [Jackson’s] profile.”

Predictably, Sen. Sheldon Whitehouse (D–R.I.) Replying to Republicans’ dark-money fearmongering, It is possible to suggestThey support the legislation to “get rid” of it. The bait should never be taken.

Whitehouse sponsors the DISCLOSE ActGrassley was one of the Republicans who voted against this bill. It would require advocacy groups that publicly disclose names and addresses to their donors. In The current polarized political atmosphereThat would spell disaster. This legislation is frequently included in Democratic Reform of voting ProposalsIt is directly against the First Amendment right for private association.

With senior staff, the American Civil Liberties Union acknowledges this threat. WriteThese provisions could “directly interfere with many people’s ability to speak out about causes they care about, and impact their lives.” They also impose new and more burdensome disclosure requirements for nonprofits that are committed to helping those causes.

They could use donor lists to shift the focus of the name-and shame attacks they launch at groups like Demand Justice, the Judicial Crisis Network and other Americans that support them. It would lead to a reduction in donations for groups who speak out and an increase in civil society shrinkage.

Whitehouse proposes a “solution”, which would vastly expand the power of federal governments over political speech. This “solution” will redefine communications about legislation or judicial nominations and make them “campaign-related speech.” True campaign speech—which calls for the election or defeat of candidates—is already heavily regulated.

The DISCLOSE Act states that a campaign-related disbursement would also include a Federal judicial nominating communication. This communication is defined as any payment effort, which can only be understood as promoting, supporting or attacking a nomination or confirmation by the Senate of an individual to serve as a Federal judge, justice, or other function. These communications are “to be considered campaign-related disbursement[s]regardless of who made the payment.

The bill, in simple English, would make speech concerning nominations a controlled form of campaign speech. Even though confirmation and judicial nomination processes do not constitute elections, organizations that fall under the purview of the regulations governing “judicial nominee communication” would be required to provide donor lists to Federal Election Commission.

This misleading and invasive disclosure requirement would push the nomination process for the judiciary even more into partisan politics. Many organizations who have maintained an impartial position, and never made any political statements would not be willing to participate in the speech-triggering provisions of this bill. Because they value the privacy of their supporters more than their ability to contact lawmakers and ask them to vote for or against a nomination, nonprofits may be unable to speak out.

They won’t be intimidated by partisan campaign groups. Because they have already been legally required to disclose their donors, and to comply with any reporting requirements, these groups may still be willing to talk about nominations.

Many small groups will find it difficult to comply with these laws, and they may be unable or unwilling to navigate new vague regulations. Americans will often donate less to groups that take on these burdens, either because they fear reprisal for their views or prefer not being associated with campaign-related speech.

The end goal of such legislation is to force any group that speaks about the government to operate like a political action committee—leaving people who support a cause to defend themselves against whatever harassment comes their way. Democrats have used “dark money” to keep from engaging their critics, and to gain support for new restrictions on speech. In their efforts to change the rules, Republican senators risk encouraging a movement that threatens everyone’s First Amendment rights.