PRO ‘Dark money’ is a euphemism for free speech, like it or not

In the class I taught at Michigan State University on “issue management,” I stressed the need to control the narrative by using the right words, particularly the shorthand term the media uses to label the issue.

For example, use “torture” rather that “enhanced interrogation techniques.” Or “voter suppression” vs. “ballot integrity.”

A powerful label used by those who seek to limit certain political speech is “dark money,” instead of “constitutionally protected free speech.”

Rich Robinson, of the Michigan Campaign Finance Network, is a master propagandist (in the best sense of the term), and a committed voice for stronger government regulation of political speech. He represents a long line of advocates who, in my view, promote an interest undermining the First Amendment: valuing formal compliance with government-mandated disclosure over the constitutional rights of free speech.

My career has involved significant efforts to defend political speech. Forty-nine years ago, I was placed on “strict disciplinary probation” by Michigan State University for joining with other political groups to bring a speaker for the Student Nonviolent Coordinating Committee on campus without a permit.

Many people who may have supported that action, opposed my efforts in the U.S. Supreme Court to ensure that when the First Amendment says “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble” it applies to all, including individuals, voluntary associations, unions and corporations.

And in the past four years I have served as Treasurer of the Michigan Advocacy Trust, a 501(c)(4) organization engaged in non-election, but politically related, “issue advocacy.” The Michigan Campaign Finance Network calls the Michigan Advocacy Trust a dark-money fund. Bridge Magazine’s Truth Squad even found one of our communications to be Number 2 of the “10 worst ads” during the 2014 election season.

The debate over “dark money” political speech raises the issue of the importance of a critical aspect of our democratic system – the role of anonymous communication to protect free speech and association. In a 700-word column it is difficult to present an adequate description, much less a defense, of anonymous political speech. But consider the following:

The First Amendment vigorously protects both free speech and association, including the privacy of association membership. This freedom stems from the fundamental principle that people are capable of self-governance, including an individual’s ability to receive information, process it and make subsequent decisions based on his or her own individual ability and interest.

Laws making politics a lawyer-dominated regulated industry in the U.S. and Michigan have already significantly reduced unfettered political speech. For example, the U.S. Supreme Court found in Citizens United v. FEC, the “FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975.” Such overbroad and onerous disclosure requirements prevent many grassroots groups from participating vigorously in national and local debate. And they encourage groups to avoid oppressive government regulation, through such means as dark money, techniques always labeled by the MCFN as “loopholes.”

The U.S. Constitution and the First Amendment might not exist but for the power of the Federalist Papers, all published anonymously. The Federalist author’s anonymity was meant to avoid prejudice and preclude obfuscation of the message. These interests are still compelling justifications for speaking anonymously.

Hindering retaliation from those with government power has been and is an important component of free speech and association. Unfortunately, our nation’s history is replete with examples where the government sought to suppress speech and organizations opposed by the dominant powers. The corruption of the IRS in seeking to silence conservative Tea Party voices is just a recent example. Here in Michigan, we have the example of the State Bar of Michigan, a government agency, seeking special rules to limit anonymous voices in judicial elections. Historically, one theme remains constant: no one enjoys being criticized and, when given the opportunity, those in power will quell dissent.

Many people forget that campaign finance laws criminalize violations of political speech restrictions. Especially where the dividing line between legal speech or political activity and criminal conduct is unclear, there is an obviously a chilling effect.

“Dark money” serves a valuable role in protecting our democratic freedoms and must be defended.

CON We live in the Ground Zero of dark money. Does that bother anyone? 

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Jeff Salisbury
Mon, 12/22/2014 - 11:39am
"Historically, one theme remains constant: no one enjoys being criticized and, when given the opportunity, those in power will quell dissent." Now THAT is a state soaked in and dripping with irony.
Mon, 12/22/2014 - 12:23pm
The appeal to the Federalist's anonymity is touching, but that is confusing an individual with a funding organization. Take McClellan's own Michigan Advocacy Trust, a producer of videos supporting the Attorney General, an entity with no other presence. And given the nature of the AG's office coupled with the New York Times detailing of cozy deals between business and other state AGs, It is fundamentally in the best interest of the citizens to know who is trying to gain favor. While money may be speech, when it comes to the courts, we need to have a clear idea of who is speaking.
Tue, 12/23/2014 - 8:47am
This author was the guy who headed up Snyder's secretive "skunk works" until the media revealed their intention of getting our local school districts to become "unbundled" as they called it. In other words, they wanted to destroy the community schools that help bind our neighborhoods. If Bridge wants to be taken seriously then they shouldn't publish political whores like this guy.
Tue, 12/23/2014 - 10:55pm
Greg says, feeling the desire to suppress speech he disagrees with...and done without disclosing his full name...
Thu, 12/25/2014 - 11:23am
Ha. Ha. For a minute I thought I was reading a Chinese People's Daily article about freedom of speech and the need for stability. Of the people, by the people and for the people is what we are about, but since when are voluntary associations, unions and corporations considered to be people? They can't vote. They don't die. They live on and grow in parasitic fashion. On the other hand, "If Bridge wants to be taken seriously then they shouldn’t publish political whores like this guy". Perhaps Bridge should limit it's free speech to only politically correct whores. Richard McLellan is publishing under his name and not as a shill for some special interest. There is nothing wrong with expressing an opinion and we shouldn't call people names because we disagree. This is a critically important issue for our democracy and should be completely discussed. I personally think there should be different rules for organizations than for real, living and breathing citizens.
Conan Smith
Fri, 12/26/2014 - 9:38am
Cheers to this, John. Thanks for the exhortation for civil discourse.
John Q. Public
Fri, 12/26/2014 - 3:32pm
Clarence Thomas said (I would like to have said, 'famously said', but I don't think the speech is widely known) that we shouldn't mistake cowardice for civility in public discourse. Some think me a coward for posting under a pseudonym. Accepting that goes with the act. If it is true for me, it is no less true for corporations--under whatever section of the IRS code they are organized. So, if I am a coward, so, too, are the "dark money" purveyors of political ads. The same goes for men like McLellan. If they're going to make a living as a political whore, they should be willing to accept being called one (and I note that it is not he who is raising any objection, nor have I ever heard of him doing so.)There's nothing "uncivil" about calling a spade a spade. But to censor him? What better way to understand the machinations of political prostitution than to have it explained by those who practice it?
Tue, 12/23/2014 - 10:44am
I am a staunch supporter of the Bill of Rights. Here is the problem I am having a difficult time reconciling... If money is speech, those with more money have more speech. It seems that the those with vast sums of money are drowning out others with no disposable cash with their narrative about anything. In fact, it seems that those with large amounts of money have the ability to make up the narrative and label or manage an issue (as Mr. McLellan would advise) to their own favorable end. (Is it accurate that Mr. McLellan has made a living out of setting up these undisclosed groups that flood our airwaves with negative ads about anything or anyone during election season? Afterall, too many campaigns are less about what you will do as a public servant and more about calling the opponent a threat to everything "we" value.) Consequently, the interests that are advanced are the interests of people with large sums of money. Or, we are simply left to trust those with large sums of money that they have the interests of the masses at heart. Which is the lesser of two evils: trust the government (who is the government, again?) or trust the small percentage of folks who can buy vast sums of "speech" and control the narrative? I am not sure that this is something with which the Founding Fathers wrestled.
Tue, 12/23/2014 - 11:28pm
Dan, Money isn't free speech, for anyone can say what they will in public whenever they want. Look at the recent 'marchers' in New York City, they were allow to say what they wanted and they were broadcast around the world saying it. How much money do you believe they spent on having the world hear what they were saying? How many ways can you think of where people can say something and it can be read anywhere in the world? How many of those ways are accessible to most people in the US, how many with a cellphone? I would say that the more money that is spent the 'louder' the words can seem, but even then the words only have as much impact as the audience is willing to give them. The reality is that people only hear what their listening for and not matter how 'loud' something is said it doesn't change what people are willing to hear.
Martha Toth
Wed, 12/24/2014 - 12:32pm
I believe our Founding Fathers could not have conceived of the amplifying power unlimited money provides to speech today. Softer voices can, indeed be drowned out. There is no one-person-one-voice proportionality. That us why I think disclosure is important. If our governmental representatives in all branches are being paid for (and who can doubt that they are?), we at least deserve to know -- before casting our paltry single votes -- who is doing the buying. I believe strongly enough in having the courage of one's convictions that I always post on line using my real, full name. Folks with unlimited money to defend themselves can surely do the same.
Thu, 12/25/2014 - 10:52am
I think it's pretty clear to everyone with a brain these days that the rich and corporations are quickly taking over our state and national legislatures and can pretty much dictate (even to writing the bills) what they want regardless of what the public really wants. We're at the edge of a plutocracy as it is yet Mr. McLellan feels that's just fine. Apparently, he's pleased with what he has been able to provide for his clients. The media landscape if malleable and when one side has a megaphone (getting louder and more lie filled) to overwhelm and drown the voices of voters / citizens then something is really, really wrong. That's the way it works for advertising (you can sell anything...) and it's the same for politics. Of course Mr. McLellan likes this and defends it - it suits his desires but that doesn't change the fact that we won't have a democracy if it keeps on the present track.
Lola Johnson
Thu, 12/25/2014 - 12:40pm
Nothing in the constitution suggests that "free" also implies anonymous. Only a politician or a lobbyist would suggest that the constitution guarantees that one should be protected from the consequences of his speech, or political actions. The public has a right to know who pays for the ads. Otherwise, it makes a mockery of the term "informed voter".
Fri, 12/26/2014 - 1:10am
Lola, If there is "Nothing in the constitution suggests that “free” also implies anonymous.", then can you show me where in the Constitution that is says, "The public has a right to know who pays for the ads. "? Will you explain to me why it matter over 200 years ago who wrote the Declaration of Independence or the US Constitution? It seems those were ideas that arose of above the who said and spread because of the what they meant. If anything I have more concern that like much of the media the person is attacked in the media and the idea they offer is ignore and lost. An idea should be what we are interested in rather than who is for or against it, or who pays for it being offer for public consideration and public choice. Aside from who Christ was on this Christmas day why should we care who said what. Will it change anyhting that has been discovered if we remember or forget who made the greatest discovery that change society?
Stephen Brown
Thu, 12/25/2014 - 12:40pm
Money isn't speech-its a megaphone, and when no-one can see who's behind it, where is the context? I haven't seen any discourse on the media that could be compared to the Federalist. There were some real arguments there, that anyone could compare and evaluate to their own experience. What did Goebbels say? "Sure its a lie, but repeat it often enough and people will believe it". That is more like the tradition being claimed here, not the Federalist!
Fri, 12/26/2014 - 1:12am
Stephen, Tell me why if matters if a wealthy farmer drafted the ideas out nation is built on. Isn't it more important what the ideas are and how we can use them then who the source was?
Thu, 12/25/2014 - 7:30pm
Thank goodness there are so many clear-thinking, intelligent readers responding to this bizarre editorial. Dark money has destroyed our democracy. Our Supreme Court has betrayed Americans by their "Citizens United" decision. Our legislators are not swayed by their constituents' voice of protest unless we unite our voice into one.
John Q. Public
Fri, 12/26/2014 - 2:11pm
Who wrote that headline? Am I missing something? Is the writer trying to tell me that some people find the term "free speech" distasteful, and replace it with the more socially palatable "dark money?"
Sun, 12/28/2014 - 2:22pm
Pure bamboozlement from the right.
Henry S. Bareiss
Sat, 01/03/2015 - 11:44am
I choose to identify myself because I can defend what I say. I have seen so much unnecessary inflammatory and false speech because the persons are unidentified. Being accountable does not mean you lose freedom of speech. Anonymous speech can at times be, at the minimum, misleading to downright lies. Many camouflage their identity with misleading titles and so forth. If they had to identify themselves, they would be held to the standard of backing what they say. This is a basic obligation in most business transactions. The businesses still are able to thrive because the customer can count on this accountability. Too many campaigns have been filled with incredible deception. Black Money is only a way to avoid having to have the courage of your convictions. If wealthy donors were to be identified, perhaps life would be uncomfortable but they have the resources to protect themselves. They are not victims. Cowardice and the desire to avoid having to back your statements are the reasons for anonymity. There have been many who are willing to have their name connected with their speech. They have still been able to exercise their free speech. Voters have been shown to be very superficial with their voting. Studies have shown they spend more time researching the purchase of a car than they do on candidates. If the organizations and individuals were identified, voters would have a larger context to judge what is being said and claimed. There can unfortunately be no limits on how much of their "speech" they can spend but they should back up their "speech".
Tue, 01/06/2015 - 7:04pm
Mr. Bareiss, I find more valuable in listening to ideas and discussing those ideas then caring about who offered them. If anything the name of who is saying it may prejudice the discussion preventing a full consideration of the idea. Have you ever changed you expectation once you have recognized the speaker? I dislike how people try to intimidate those who write or say something that is disagreed with. A comment such as calling a writer/writers as ‘cowardice’ leaves the impression of a personal remark rather than commenting on what was said, it leaves an impression of an effort at intimidation. The word ‘cowardice’ recalls a movie about three white feathers that were used in an effort to intimidate a person who voiced his views. I have seen a rather diverse set of stressful events where people have had to confront varying degrees of risk. I have found that I better appreciate the ‘hero’ and have yet to view the ‘coward’. I would offer that when a person offers an idea whether I agree or not they are taking a risk, and to take that risk is a small reinforcement of a right that built our country and provides it with hope. I first used my first name out of convenience, now I find it has become an irritant to those who are more concerned with who is saying something rather than listening to what is being said. If needed, Bridge has my personal information.