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Karl Rove's NAACP Analogy Runs Afoul Of Law, History

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WASHINGTON -- What do modern-day billionaires attempting to secretly buy federal elections have in common with blacks in the 1950s who needed to keep membership in civil rights groups private or risk getting firebombed?

The obvious answer is not much at all. But to hear Karl Rove and some other Republicans talk, the two groups share a legitimate fear of intimidation -- and deserve the same legal protection.

Rove, formerly ex-President George W. Bush's "brain" and now one of the GOP's foremost political operatives and fundraisers, was responding on Fox News Monday to several recent moves that threaten to reduce the role of secret money in the 2012 presidential election. Foremost among them: a federal court ruling late Friday that could close the giant loophole that Rove and others used to buy hundred of millions of dollars of political ads for individuals and corporations that don't want to leave fingerprints.

There's also a fledgling effort by state treasurers to use their role in state pension funds to demand that corporations be more transparent in their political giving.

"We've seen this before," said Rove, describing the attempt by southern attorneys general in the 1950s to make NAACP membership lists public in order "to intimidate people into not giving to that organization."

To Rove, the parallels are clear. Democrats "want to intimidate people into not giving to these conservative efforts, and I think it’s shameful,” he said. “I think it’s a sign of their fear of democracy, and it’s interesting that they have antecedents and those antecedents are a bunch of segregationist attorneys general trying to shut down the NAACP. It goes to show the basic emotions and the basic philosophy behind most of this.”

Rove joins such other outspoken Republicans as former Bush administration lawyer John Yoo, the author of the "torture memos" that justified waterboarding terrorism suspects in likening modern campaign contributors to 1950s NAACP members.

But the modern Supreme Court has repeatedly rejected that analogy, both because campaign contributors don't face comparable threats and because there is strong public interest in informing the electorate and preventing corruption of the political process.

In 1958, the Supreme Court sided with the NAACP because it had "made an uncontroverted showing" that the public identification of its members exposed them "to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility."

By contrast, even in its 2010 Citizens United decision -- which blew away post-Watergate campaign contribution limits -- the court noted that the complainant offered "no evidence that its members face the type of threats, harassment, or reprisals" that might make disclosure a problem.

The court also reaffirmed a series of earlier decisions related to disclosure of campaign donations, including its 1976 ruling that explicitly declared that the NAACP precedent was "inapposite" -- or not pertinent -- "where, as here, any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors is highly speculative."

No less a conservative than Justice Antonin Scalia, in a 2010 case about the disclosure of petition signatures, wrote that the fear of "harsh criticism" doesn't entitle political speakers to anonymity. "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed," he wrote.

Democracy 21 president Fred Wertheimer, a longtime critic of money in politics, told The Huffington Post that Rove has the analogy backward. "In the case of the NAACP membership lists, the rights of American citizens were protected," Wertheimer said. "In the case of campaign finance disclosure, the rights of American citizens to a government free from corruption are being protected."

Legal arguments aside, any analogy between NAACP members in the '50s and Rove's deep-pocketed donors is highly suspicious.

"That was a historical period in which African Americans, Jews and sympathetic Christians were literally losing their livelihoods, losing their homes, losing their jobs and losing their lives because of their participation in the civil rights movement," said Anita L. Allen, a law professor at the University of Pennsylvania who has studied the NAACP case.

Rove's wealthy donors "aren't being subjected to dogs and water hoses and lynchings in the middle of the night for donating to a political campaign," Allen said. "It's absurd. It's almost absurd to the point of being offensive."

Hilary Shelton, director of the NAACP's Washington bureau, called the analogy "outrageous and silly."

Disseminating the membership list of the Alabama NAACP in the 1950s would have made it "equivalent to a death list," Shelton said. "Millionaires and billionaires actually investing their money to influence the outcome of an election that effects everyone" face no such threat," he said. "Somebody might be unhappy that they made a contribution to a candidate they don't like. I don't see them being fired from their jobs; I don't see them being blown up in the middle of the night."

Wertheimer called Rove's tactics "jujitsu politics. You take a weakness, a complete weakness and try to turn it into an advantage."

Rove-affiliated groups, including Crossroads GPS, which does not disclose donors, have pledged to raise and spend $300 million in the 2012 election cycle.

In this case, Wertheimer said, Rove "is trying to obscure and confuse and in that way overcome a position that is unassailable -- namely that the group that is his brainchild should not be hiding from the American people the donors who are funding campaign expenditures to influence their votes."

Rove and other GOP political operatives who have been counting on unrestrained secret money to swamp President Barack Obama's strength among small donors may suddenly have reason to be nervous.

The Supreme Court often gets the blame, but secret political donations are actually the creation of a 1997 Federal Election Commission loophole that operatives have been able to exploit due to lax IRS enforcement of tax-exempt groups and Republican obstructionism in Congress.

The loophole has allowed certain tax-exempt groups that also take money for non-political purposes to keep political donors secret unless the donations are explicitly made "for the purpose of electioneering communication," which means advertising that names candidates in the 30 days before a primary and 60 before a general election.

But as of Friday, that FEC rule has been struck down, with a federal judge saying that disclosure is mandated. And while the FEC is so deadlocked that next steps are unclear, the IRS recently began an investigation that suggests it may be clamping down on the abuse of the so-called 501(c)(4) groups that Rove and others use to avoid disclosure. And congressional Democrats are renewing their push for disclosure laws.

The other organizations that have taken advantage of the same loophole are 501(c)(6) groups -- trade groups, including the U.S. Chamber of Commerce. The Chamber, which spent $33 million on political ads in the peak months of the 2010 election cycle, has historically argued that disclosing its donors would chill free speech.

"Many of its members have made clear that they are not willing to be identified and will terminate or withhold support if disclosure becomes a risk," the Chamber's legal team wrote in 2010.

But why are corporations so cagey about disclosure? The Chamber's press office did not return inquiries on Tuesday.

Karl Sandstrom, a Washington lawyer and former FEC commissioner, said Friday's court ruling may add to the growing uncertainty among donors who have been assured their contributions wouldn't be disclosed.

"Particularly individuals and corporations that are in the public spotlight, who may not be eager to be associated with certain political spending campaign efforts may say, 'I don't know what the rules are. We're just not going to assume the additional risk that we will be associated eventually with this spending,'" Sandstrom said.

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