A white paper published today by John Yoo, a law professor at the University of California-Berkeley and a visiting scholar at the American Enterprise Institute, and David W. Marston, a lawyer and former U.S. attorney in Philadelphia, makes a compelling historical and legal case against the administration’s proposed executive order making disclosure of political giving history a condition to being awarded a federal contract.
The paper, available on the AEI web site, shows that anonymous speech has served as the central vehicle for discussing politics both before and after ratification of the Constitution in 1788. Founding Fathers including Alexander Hamilton, John Jay, and James Madison routinely debated the issues of the day under pseudonyms, and the U.S. Supreme Court has for decades repeatedly protected anonymous speech, as Yoo and Marston note in citing several cases.
Though supporters of the executive order dismiss the potential for retaliation and intimidation as a result of disclosure, Yoo and Marston point to recent instances where this has indeed occurred. In California, supporters of a controversial ballot measure whose names, addresses, and employers were disclosed faced death threats, lost their jobs, saw their property destroyed, and had their businesses boycotted. In Minnesota, Target encountered a boycott and protests at its stores after its contribution to a conservative political group was disclosed.
Yoo and Marston track the administration’s relentless pursuit to curtail free speech. Having failed to legislatively reverse a line of Supreme Court cases ending with Citizens United that reaffirmed core First Amendment speech rights, the administration and its allies are attempting to clamp down on free speech through regulation promulgated by the FEC and the FCC. The latter agency’s chairman, the white paper notes, bundled more than $500,000 for President Obama’s 2008 presidential campaign and has visited the White House more than 80 times.
Frustrated by the slow pace of a regulatory solution, the administration is now seriously considering a unilateral reversal of the Supreme Court through presidential fiat, against the wishes of several members of its own party, including Rep. Steny Hoyer and Sens. Claire McCaskill and Joe Lieberman.
The administration should recognize that politics cannot trump a constitutionally protected, fundamental right that has been the cornerstone of our democracy and withstood legal challenges for more than 200 years.
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