Disclosure 50 years later

January 31, 2008   •  By IFS staff
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A little more than two weeks ago marked the 50th anniversary of oral arguments in the historic Supreme Court Case, NAACP v. Alabama, that protected civil rights activists from government sponsored disclosure of their identities which would have promised serious retribution.

The Jim Crow laws that the NAACP was fighting at the time have thankfully disappeared but the dangers of government coerced disclosure remain.   Yet today, under the guise of "reform", some are still trying to erode the political protections assiduously earned in the case.

Back then, the Alabama government tried to compel the NAACP into giving the state the names of NAACP members engaged in the civil rights movement.   In response to Alabama’s inquiry, the Supreme Court rightly stated in its opinion siding with the NAACP that it "is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute…a restraint on freedom of association."     

Most debates on the issue of disclosure now neglect the burdens placed on the Constitutionally-protected freedom of association and instead focus on "shining light" on the supporters of political organizations so as to better inform the public.

Admittedly, forced disclosure of political contributions is arguably justified when used to expose the potential for quid-pro-quo arrangements between political candidates and their supporters.   But the current call for disclosure of independent political and issue organizations is a radical departure from the original intent of the disclosure regime.  

The threat of government retribution has not faded over the past 50 years and disclosure of issue organizations is now sought by some interests hoping to silence their ideological counterparts.   Recent history confirms that disclosure is a valuable club with which to inflict damage on philosophical opponents. 

Barely more than a year ago, United States Senator Olympia Snowe and Senator Jay Rockefeller sent a letter to the head of an energy company demanding that it stop funding research on climate change.

The Charleston Daily Mail recognized, "Such a warning, coming from a U.S. senator, carries with it a hint of political consequences."  Indeed. At the time the letter was sent, the Senate was considering a "windfall tax" on the profits of energy companies.  

The threat of government retribution does not end with the bullying of corporations.  Other Senators have used disclosure to retaliate against individuals for their political involvement.

Sam Fox, a qualified candidate to become U.S. Ambassador to Belgium, was forced to withdraw his name from consideration after Senator John Kerry denounced Fox for having contributed to a political advocacy organization that was critical of Senator Kerry.

Elected officeholders and the government are not the only ones capable of intimidating political activists.   In 2004, Gigi Brienza became a modern victim of disclosure.

After listening to a John Edwards campaign speech about poverty in America, Brienza was inspired to contribute $500 to Edwards’ presidential campaign.   A radical group, named by the FBI as one of the most serious domestic terrorist threats, soon took Brienza’s name and address from FEC disclosure forms. The group put Brienza on a "target" list under the heading "Now you know where to find them."  The organization was upset that she worked for Bristol-Myers Squibb.

Americans should not fear reprisal for daring to engage in the political process.  But in addition to threatening fundamental rights of speech and association, disclosure puts the wrong focus on debates over the important issues of our day.

Instead of fostering important debate, advocates of a coercive disclosure regime hope to damage their opponents by exposing their identity.   The best way to convince the American people to support an issue is to convince them of the merits of the position.  

There is no compelling government interest in requiring disclosure of any type of independent political activity – although some make a strained case for disclosure when candidates are mentioned.   But when political activity is narrowed to include only issue advocacy and policy research there can be no justified reason for government interference at all.   

Our country is currently confronted with serious challenges on issues ranging from health care to national security and the war in Iraq.   Debate over these and other issues should be encouraged, not squashed by pernicious government interference.

Now is no time to discard the political rights secured 50 years ago.

IFS staff

IFS staff