Twelve years ago, Citizens United v. FEC opened the floodgates to outside spending in federal elections based on a promise that all such spending and its sources would be subject to “prompt disclosure” in order to “hold corporations and elected officials accountable for their positions and supporters,” and show “whether elected officials are in the pocket of so-called moneyed interests.”

That promise was never fulfilled. Instead, today dark money groups and their backers are mounting legal challenges to hide campaign spending from public scrutiny and voters (though never from the officials they ply for favor). Citing the First Amendment, they argue that without secrecy, they might spend less, which “necessarily reduces the quantity of expression.”

But in arguing for secrecy, their attacks concede that their goal is to censor criticism of them, the candidates they support, and their donors. They call this criticism “harassment” or “reprisals,” but what they oppose is speech

The First Amendment flatly bans government actions intended to suppress disfavored speech, including when a court blocks the public’s access to information to prevent them from discussing it.

Censoring the public’s access to information “necessarily reduces the quantity of [their] expression.” Even if the dark money proponents might spend more without the public’s criticism, “the concept that the government may restrict some speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Dark money’s desire to censor

Moneyed interests have long presented themselves as defenders of the First Amendment. They’ve argued that “limiting the use of money for political purposes constitutes a restriction on communication violative of the First Amendment.” They have argued such laws “depriv[e]” the electorate “of information, knowledge and opinion vital to its function.” These appeals to the First Amendment have largely succeeded in striking down limits on campaign spending.

They have not, however, been successful to date in striking down disclosure. Rather, the Supreme Court has recognized that disclosure combats corruption and informs the public, even relying on disclosure as a “less restrictive” means to achieve those ends in order to strike down other laws. Disclosure does “not prevent anyone from speaking.”

But these moneyed interests are focused on spending without public criticism or oversight, preferring to complain that disclosure leads to “harassment” that “chills” their own activities. 

For example, in a recent Supreme Court challenge, plaintiffs argued that the potential that inadvertent disclosure could lead to disfavored speech justified striking even a non-public collection program. The challengers pointed to speech that “identifi[ed] and publicize[d] [their] donors.” They complained of “vitriol by ideological opponents” and cited their fears about “social ostracization” and boycotts.

Challengers to public disclosure laws have similarly complained of criticism. In one case, a challenger cited public “post[s]” of the “names and contact information,” of supporters, and a “large number of emails from people who disagree” or were “displease[d]” with them. Another cited the fact a customer “would no longer support [a donor’s] business” due to their disagreement. They complained of being called a “bigot.” Another cited a family member’s desire to “no longer speak[]” with him, previously friendly individuals who “now give looks of disdain,” and friendships now “risked.”

These submissions make plain the goal of those challenging disclosure: to censor critical speech that the challengers’ disfavor. Without disclosure, these groups’ and their donors would be able to silence those who might judge them and thwart those who might disassociate from them. But there is no First Amendment right to speak free from criticism and judgment. Rather, the First Amendment protects the critic as much as the speaker.

The First Amendment bars censorship of disfavored speech, even by courts

The First Amendment protects the back and forth of arguments that make up “uninhibited, robust, and wide open” public debate, even if that speech is “caustic,” “offensive,” “hurtful,” and “aggressive.” “An advocate must be free to stimulate his audience with spontaneous and emotional appeals.” That speech may similarly be expressed through one’s “freedom not to associate,” including through organized boycotts.  This speech is protected not because it is ineffectual, but because it is very often effective: it can dissuade, shame, humiliate, condemn. If overused or unwarranted, the criticized’s sole remedy is to speak in response. The First Amendment leaves the entire dispute to uninhibited public debate. “Harsh criticism” is part and parcel of “self-governance.”

“Dark money proponents know their attempts may be less effective if their false personas are exposed or their conflicts of interest are revealed. They know candidates will be less likely to trade in favors if those favors are more easily tracked.”

While moneyed interests may face harsh criticism, it is oftentimes effective criticism. One of the most informative things an audience can know about a proposal is who funded it. For example, it was very useful to know that the “National Smoker’s Alliance” was a front group for the tobacco industry, and that nonprofits pushing pain medication were taking money from Oxycontin manufacturer Purdue Pharma. It is no wonder then that many public appeals—including those made by dark money groups—use their public attention to identify and attack a candidate’s or proposal’s financial supporters. A credible disclosure regime can also disprove false associations.

Information about financial patronage is even more vital in elections, when final decisions must be made on short deadlines. For example, voters in Colorado should have known the nondescript entity called “Americans for Job Security” extolling a candidate’s stand against “big government spending” was being paid by the candidate’s old employer, a federal contractor and beneficiary of that spending. Ohioans would have  benefited from knowing that attack ads they saw were funded by an energy company with a cozy relationship with the target’s opponents. Voters in Florida could have benefitted from knowing a candidate was funded by ideological opponents to spoil the election. Millions of Americans would have benefited from knowing social media ads they saw every day leading up to the 2016 presidential election were funded by the Russian government.

Dark money proponents know their attempts may be less effective if their false personas are exposed or their conflicts of interest are revealed. They know candidates will be less likely to trade in favors if those favors are more easily tracked. 

Yet the First Amendment bars government actions aimed at suppressing “disfavored speech.” The government may not criminalize that speech directly. It also may not limit the flow of information to suppress the speech it enables. The sole remedy available for ostensibly bad speech is “more speech.” 

That applies to the courts too: the First Amendment “afford[s] special protection against [court] orders … that impose a ‘previous’ or ‘prior’ restraint on speech.” “[N]o branch of government,” including the courts, may “abridge the people’s freedoms of press, speech, religion, and assembly.” Thus, even a court order, if done for the purpose and with the effect of restraining disfavored speech, is unconstitutional. 

Of course, the government created disclosure, so some argue it should be able to take it away even for malicious purposes, like closing swimming pools to protect segregation. But the First Amendment precludes the wholesale elimination of a benefit if done for the purpose of suppressing speech. In other words, “[t]he government violates the First Amendment when it denies access to a speaker … to suppress [their] point of view.”

Even if governments aren’t required to impose campaign finance disclosure obligations in the first place, once they do so, they may not limit or eliminate those provisions for the purpose of suppressing the speech the disclosure facilitates.

Responsibility, not retaliation

Given the infirmity in their argument, dark money proponents make strained appeals to compare themselves to civil rights groups and try to divert attention from their censorship by pointing to rare cases of violence.  These arguments don’t save their attempt at censorship, however, as I’ll address in another post. 

Disclosure was once offered as a concession by those seeking to unleash campaign spending. Now that concession is no longer needed and campaign spending has exploded, disclosure itself is now a target. Those targeting disclosure are doing so for unconstitutional purposes: to suppress criticism and to keep their audience in the dark. While the First Amendment protects the speaker from official retaliation, it does not guard against social responsibility. Speakers can and should face criticism and social consequences for their speech, even if harsh and passionate. The First Amendment requires it and a strong democracy demands it.