‘Dark money,’ free speech and a long way to go

In a routine Sunday column about things the Montana Legislature did right in the recent session, Billings Gazette Editor Darrell Ehrlick wrote this sentence: “Free speech is not the right to say anything to anyone without having to sign your name to it.”

Actually, the right to say anything to anyone without having to sign your name to it is pretty much the definition of free speech. That’s why questions about campaign spending have become so tortured in Montana and in the nation as a whole.


David Crisp

In part, Ehrlick was writing in praise of Senate Bill 289, the Disclose Montana Act, better known as the “dark money” bill, which expands donor disclosure requirements. Twenty-one Senate Democrats and seven Senate Republicans voted for the bill; in the House, 41 Democrats and 10 Republicans voted for it.

Some of the Republicans who voted for the bill have been targeted as sellouts and RINOs by fellow party members (Outpost, May 7). The objections of Republicans who opposed the bill are difficult to summarize, but they include constitutional concerns, privacy violations and procedural complaints.

Former legislator Krayton Kerns, a Republican from Laurel, put it this way: “If your pastor has ever expressed scriptural views concerning abortion or homosexuality they have crossed the new advocacy threshold and the church suddenly becomes an incidental political committee fully regulated by Montana’s Commissioner of Political Practices. To comply with SB289, every church donor will be listed on a political database. Suddenly, all Alinsky operatives and Islamic fundamentalists can access the name and address of every Christian with a simple click of their mouse.”

Kerns’ opinions are nearly always good for a chuckle. If ISIS wants to target Christians in Montana, there are easier ways than poring over campaign finance reports. But the fears Kerns expresses are not so removed from reality as they may appear.

The First Amendment prohibits Congress from passing any law abridging freedom of speech. For the founders, that freedom clearly included anonymous speech. Even the authors of the Federalist Papers used pseudonyms. The right to criticize anonymously, hideous as it may appear in modern website comment sections, has a long and honorable history.

The right to spend money on elections is nearly as venerable. In a 1976 case, Buckley vs. Valeo, the U.S. Supreme Court held that “a restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”

So if restricting money restricts speech, and if speech may not be restricted, then money—even anonymous money—may not be restricted, right? Such is the logic that led to the Citizens United ruling and the current disarray in campaign finance laws.

Recent cases before Commissioner of Political Practices Jonathan Motl accentuate the confusion. As he noted in one recent case, former Commissioner Peg Krivec served a six-year term in the office (1981-86) without ever issuing a decision. Subsequent commissioners generally fined violators and allowed them to go on by mending their ways.

Those were simpler times. In his recent ruling against the Montana League of Rural Voters (Outpost, April 30), Motl said the group appeared “to be genuinely confused as to its reporting responsibilities,” and he offered an opportunity to negotiate a penalty.

But Motl came down hard on Rep. Art Wittich, R-Bozeman, saying that he and other parties in the case were “unwilling to accept or adjust to Montana’s expectations of appropriate election behavior.”

Motl wrote, “There is lag time in social adjustment when major changes occur in permissible activity, such as the changes made by the Citizens United decision. During this lag time opportunistic people and groups may emerge and promote activity … that is risky or downright illegal.”

Will SB 289 reduce that lag time? Motl seems to think so. But as the SB 289 vote showed, it isn’t just liberal Democrats who worry about the influence of huge amounts of undisclosed cash on American elections.

The reality is that most Americans don’t exercise much free speech. John Oliver aired a segment on HBO Sunday night about chicken farmers who are afraid to speak out against exploitative contracts with major poultry companies for fear of losing their contracts. And Congress has refused to pass legislation protecting farmers’ free-speech rights, apparently because of huge campaign donations from those same companies.

Wage theft in the United States by companies who cheat employees out of legally obligated overtime has been estimated at $18 billion a year. Why? Because low-wage workers effectively have no voice. A growing number of people have been fired for ill-considered remarks in Tweets or on their Facebook pages.

Even Kerns has noted that Montana business owners are afraid to speak freely for fear of losing customers. The gap between those with no voice and the billionaires who have an ever-growing voice endangers freedom and civil society itself.

In a democracy, government has no more important function than conducting free and fair elections. Except, perhaps, for protecting the right of citizens to speak freely.

It’s a conflict that stabs at the heart of liberty. SB 289 grasps one horn of that dilemma, but the bull charges on.

David Crisp has worked for newspapers since 1979. He has been editor and publisher of the Billings Outpost since 1997.

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