Where would this country be without its tradition of anonymous political speech? Alexander Hamilton, James Madison and John Jay published “The Federalist Papers” under the name Publius to force critics of the Constitution to attack the ideas behind the document rather than the authors of the essays. The ideas won.
A Nevada judge provided a less-than-ringing endorsement of anonymity last month in validating a private group’s right to engage in unregulated political speech, while also upholding the state’s ability to compel such groups, under different circumstances, to register with the secretary of state before doing so.
The case is rooted in fliers that targeted then-Assemblyman Kelvin Atkinson, a North Las Vegas Democrat, during his successful 2012 run for state Senate. The fliers, paid for by Americans for Prosperity, urged voters to call Mr. Atkinson and criticize him for supporting costly green energy legislation. They did not urge a vote against Mr. Atkinson or a vote for an opponent.
Secretary of State Ross Miller sued AFP, arguing the timing and messaging of the fliers amounted to election advocacy, and demanding that AFP register with his office — a step that would have required AFP to disclose its donors. The conservative group is supported by oil billionaires Charles and David Koch, but exactly how much money it spends and who else donates to it isn’t known.
And as long as AFP is spending private money outside the control of political candidates, no one has a right to know the private group’s finances. Voters are perfectly capable of judging the merits of any message without knowing the messenger, especially if the message is delivered close to an election. Political speech is afforded special protection by the First Amendment, and for good reason: If we can’t express unpopular ideas in criticizing government and the people behind it, it won’t be long before they come after our other rights as well. Free expression no longer qualifies as a right if people must register with the state to criticize politicians.
Senior District Judge Robert Estes of Carson City ruled that in this case, AFP did not need to register with the secretary of state because its fliers did not constitute the “express advocacy” that triggers the donor disclosure requirement — for example, “Don’t vote for Mr. Atkinson.”
The vast web of state and federal laws governing campaign financing, election advertising and political speech were not written for the sole purpose of ensuring election integrity. They also serve to protect incumbents. Make no mistake, plenty of politicians and agitators want to know who’s donating to AFP and other such organizations so they can attack the messengers, not their messages. If you attack the messengers enough, through criticism, intimidation or retribution, the message goes away. As it is, many prospective donors are reluctant to contribute directly to political challengers because disclosure requirements make them vulnerable to political payback from incumbents.
Less speech never serves the public interest. If individuals or groups want to spend their own money on a message, they should be free to do so — without state approval.