The New York Times is going after the Koch Brothers once again. No news there, of course. But it’s worth noting that the Times has found a new angle to pursue–or should we say, a new club with which to cudgel the Kochs–namely, the legal curlicues of campaign finance. Liberals, no doubt, will be cheering for the Times, but they ought to be careful, because two can play at this game.
Conservatives have long decried the left’s drive to “criminalize” politics as a means to achieve ideological ends. Last month’s politically-motivated grand jury indictment of Texas Republican Governor Rick Perry even drew the ire of some on the left, such as President Barack Obama’s chief political strategist David Axelrod, who dismissed the charges as being “pretty sketchy.”
Still, some progressives seem intent on pushing the criminalization of political differences to score short-term political advantage without considering long-term consequences. Indeed, the left’s rush to deem corporate money in political thought as legally actionable is one progressives would do well to quash.
Case in point: progressive New York Times op-ed writer Thomas B. Edsall’s banal and one-sided screed against Karl Rove and the Koch Brothers, those reliable boogeymen of liberal nightmares. In a breathless Wednesday piece titled “Karl Rove, the Koch Brothers and the End of Political Transparency,” Edsall served up heaping doses of phony outrage over the perfectly legal practice of conservative 501 (c)(4) social welfare organizations receiving anonymous donations.
“The financial resources of the anonymous donors to Crossroads are striking, according to the organization’s 990 filing,” wrote Edsall. “Among the donors were 53 who contributed at least $1 million. Even more generously, one donor gave $22.5 million, another gave $18 million, and two gave $10 million each.”
After dragging readers through a tedious gauntlet of 501 (c)(4) regulatory compliance verbiage, replete with percentages of allowable political activity, Edsall excitedly raises the specter that groups like Americans for Tax Reform may have engaged in two percent more political spending than is permissible before begrudgingly conceding: “I asked a number of experts in money and elections about the discrepancy and got conflicting answers.”
Furthermore, Edsall asserts that the “labyrinthine secrecy characteristic of the $400 million network of 17 interlocking advocacy groups that coexist under the aegis of the Koch brothers” has created a climate wherein “a kind of lawlessness prevails that is incompatible with the goals of democracy.”
Wowzers.
Yet nowhere in Edsall’s 2,300-word diatribe does he mention any of the myriad progressive 501 (c)(4) groups, such as Center for American Progress, or the “labyrinthine secrecy” that shrouded Big Labor’s $4.4 billion in political spending between 2005 and 2011.
Moreover, as Edsall himself noted in March, the 1958 N.A.A.C.P. v. Alabama and the 1995 McIntyre v. Ohio Elections Commission rulings upheld anonymity as a legitimate means of political activism.
The 1958 case was profoundly important, because in the era of lynch mobs and church-bombings, to give money to the Alabama chapter of the National Association for the Advancement of Colored People was to put one’s life at risk. In a unanimous decision, Justice John Marshall Harlan II wrote, “This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations…”
Similarly, the 1995 ruling recognized that anonymity protects the rights of those whose views the government or other powerful interests may seek to retaliate against.
“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent, wrote Justice John Paul Stevens in the majority’s 7-2 decision. “Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation–and their ideas from suppression–at the hand of an intolerant society.”
Right-leaning individuals expressing their political views in today’s post-IRS conservative targeting scandal have just cause to use anonymity as “a shield from the tyranny” of the Obama administration and as a means to protect themselves from “retaliation… at the hand of an intolerant” Internal Revenue Service.
But one day, under a different administration, so, too, might liberal activists.
And that’s the point: the road to political criminalization is fraught with endless recriminations, each eroding individual freedom and silencing legitimate political expression. As Sen. Ted Cruz (R-TX) pointed out during a speech this week on the Senate floor, Sen. Harry Reid (D-NV) and Democrats’ move to rewrite the First Amendment in an effort to limit or restrict spending by outside groups could have the unintended and absurd consequence of potentially banning such things as Saturday Night Liive.
In the classic film A Man for All Seasons, Sir Thomas More argues with another character about the rule of law. The other character says he would cut down every law in England to go after the Devil. And More answers, explaining that the law exists for others, as well as oneself: “This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
Progressives like Thomas B. Edsall would do well to check their penchant for criminalizing politics at the door. Their own self-interest would seem to require it. Indeed, if opinion polls are any indication, the political winds may soon shift the balance of power, forcing liberals to “stand upright in the winds that would blow then.”
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