In last week’s Senate hearings of Supreme Court nominee Judge Neil Gorsuch, Senator Sheldon Whitehouse (D-Rhode Island) pressed Judge Gorsuch repeatedly on the contentious issues of political speech and campaign finance disclosure.
As detailed in a previous blog, this line of questioning was expected, as progressive activists, outside groups, and politicians continue to intensifying their campaign to demonize and suppress political speech in the years following the Citizens United case.
Perhaps most telling of this agenda was an exchange with Judge Gorsuch in which Senator Whitehouse stated that “chilling” political speech is a “value” our democracy should consider.
Here’s the exchange from last Tuesday’s hearings:
Judge Gorsuch: There may be limits when it (disclosure) chills expression, as it did in the NAACP case, and we have to be worried about that.
Sen. Whitehouse: So if we have to be worried about the chilling of expression, which is a value proposition that you have just enunciated,… should we be worried about the influence of dark money essentially corrupting our politics? You’re taking a lot of time to get what I think would be a fairly simple answer.
Judge Gorsuch: I’m sorry, but I don’t think this is simple stuff at all, Senator. I think this is hard stuff. I think you’ve got First Amendment concerns and precedents in the area that would have to be considered. We’d have to see what law Congress enacted. I’d then want to go through the full judicial process – I’d want to read the briefs, I’d want to keep an open mind…
Sen. Whitehouse: I understand, but you just asserted right here that the value of not chilling speech was something that we should consider, right.
Judge Gorsuch: I said the Supreme Court of the United States in NAACP recognized that the First Amendment protections we all as people in this country enjoy, can be chilled sometimes.
Sen. Whitehouse: And chilling is a value we should consider.
Judge Gorsuch: It’s a First Amendment right we’re talking about, Senator.
Later in the exchange, Senator Whitehouse pushed further on the topic, asking Judge Gorsuch (in a tense yet self-righteous tone) to explain why an advocacy group is spending “dark money” to promote Gorsuch’s confirmation:
Sen. Whitehouse: How would you describe any differences that you may have in judicial philosophy with Chief Judge Garland?
Judge Gorsuch: I would leave that for others to characterize. I don’t like it when people characterize me, and I would not prefer to characterize him. He can characterize himself.
Sen. Whitehouse: What’s interesting is that this group sees a huge difference between you that I don’t understand. The dark money group that is spending on your election spent at least $7 million against him getting a hearing and a confirmation here, and indeed produced that result by spending that money. And now, we have $10 million going the other way. That’s a $17 million delta, and for the life of me I’m trying to figure out what they see in you that makes that $17 million delta worth their spending.
Judge Gorsuch: You’d have to ask them.
Sen. Whitehouse: I can’t because I don’t know who they are. It’s just a front group.
In attempting to make his point, Senator Whitehouse not only vilifies the exercise of political speech, but ignores the vast and complex regulatory regime already restricting campaign finance in the United States, under both federal and state law.
Also, in his attempt to demonize and publicly shame organizations and prominent donors (calling out the Koch, DeVos, Mercer, and Anschutz families during the Gorsuch hearing), Senator Whitehouse illustrates significant reasons that anonymous speech has been a value throughout American history – to prevent prejudice, keep the message central, and prevent retaliation from those in power.
In the article, authors Benjamin Barr and Stephen Klein write:
“Anonymous political speech has been the scorn of entrenched powers and the saving balm of emerging voices throughout English and American history… Although for some, anonymous political speech is inherently negative, its value remains of highest constitutional import… Today’s zealous push for all-encompassing disclosure – which replaces political anonymity with complex detailed reporting – injures our system of self-government and is highly burdensome for average speakers.”
Furthermore, Barr and Klein brilliantly raise the value of anonymous political speech in our country’s founding:
“Ironically, today one of the most important influences on the ratification of the United States Constitution would face civil and possibly criminal penalties if it failed to register and report as a PAC. Publius, the collective author of The Federalist Papers, would have to register if they discussed a political issue in numerous states. As disclosure expands under federal law, Publius might also be ensnared in federal regulations. Even if this were not burdensome in itself, disclosure would reveal the identities of Alexander Hamilton, James Madison and John Jay as the organization, and risk diminishing Publius’s effectiveness.”
Indeed, a figure like Alexander Hamilton, controversial in life (and in death) would have detracted from the message he wrote. Barr and Klein explain:
“Anonymity was central to the success of The Federalist Papers. ‘No secret could have been more closely guarded than was the authorship of The Federalist Papers. Even Hamilton’s best friends did not know what he was doing; if he seemed busier than usual, it was ascribed to the flourishing state of his law practice.’ A 1792 French collection of The Federalist Papers named the authors, but did not identify the respective essays of Hamilton, Madison, or Jay; such identification did not occur until 1810, and even today there is still debate over authorship of certain essays. Many expressed prejudice against Hamilton, thus explaining his use of the name Publius. Hamilton often received attacks ‘jeering at his foreign birth, his supposed racial identity, his illegitimacy and his putative links to the British Crown—attacks that set a pattern for the rest of Hamilton’s career. Since critics found it hard to defeat him on intellectual grounds, they stooped to personal attacks.’ Gouvernor Morris, a fellow Constitutional Convention delegate, considered Hamilton ‘indiscreet, vain and opinionated.’ Even years after Hamilton’s death following a duel against Aaron Burr—the duel itself an indicator of Hamilton’s polarizing nature—John Adams quipped that Hamilton’s alleged ‘[v]ice, folly and villainy are not to be forgotten because the guilty wretch repented in his dying moments.’ Whatever the merit of these criticisms, Hamilton had ample reason to remain anonymous and thereby prevent prejudice against The Federalist Papers. The events surrounding the Constitution’s inception also explain Hamilton’s desire for anonymity. He opposed numerous Constitutional provisions at the drafting convention, and then decided to support its ratification. Although media has changed greatly since the founding era, it is quite likely Hamilton would have faced criticism for his ‘flip flop’ had he attached his name to The Federalist Papers so soon after opposing the Constitution. Hamilton’s anonymity meant to avoid prejudice and preclude obfuscation of his message, and these interests are still compelling justifications for speaking anonymously.”
As you can see, anonymous political speech, or “dark money” as it is loathingly referred to by its critics, has a long tradition in American politics – a tradition grounded in fostering a reasoned and robust public debate.
And as Judge Gorsuch insisted in his hearings, the First Amendment guarantees you and I freedom of political expression without the threat of disclosure being used as “a club” to knock us over the head for voicing our political opinion in the public arena.
Unfortunately, many in power (like Senator Sheldon Whitehouse) remain determined to quell dissent by expanding and enforcing burdensome campaign finance regulations.
America’s Foundation for Law and Liberty (AFLL) is committed to defending the original meaning of the First Amendment as written, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people to peacefully assemble, and to petition the Government for a redress of grievances.”
You can help AFLL carry out its mission by giving here.