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A Response to the Koch Brothers Claim of Entitlement to Anonymous Political Giving

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An online column by Tom Edsall on the New York Times website (March 18), entitled "In Defense of Anonymous Political Giving," presents the arguments made by the Koch brothers to justify keeping "anonymous" the untold millions of dollars they are giving to groups to spend on campaign ads and other political activities to influence federal elections.

In his column, Edsall cites a spokesman for the Koch brothers and their company on why anonymous political giving is constitutionally protected. According to the spokesman:

The rationale behind donor anonymity, which is a form of First Amendment speech, is to protect against the threat of retaliation when someone or some group takes a stand, espouses their point of view or articulates a position on issues that may (or may not) be popular with the general public or the political party in majority power. There are many precedents to this: the Federalist Papers were published under pseudonyms and financed anonymously, out of fear of retribution.

The spokesman for the Koch brothers cites two Supreme Court decisions, NAACP v. Alabama (1958), and McIntyre v. Ohio (1995), to support their claim for anonymous political giving.

The only problem is that the cases don't support the Koch brothers claim.

In reality, the Koch brothers have no constitutional basis and no policy basis to justify secretly injecting untold millions of dollars into federal elections. The Supreme Court and Congress have long recognized that voters have a basic right to know information about political money being given and spent to influence their votes.

Both of the Supreme Court cases cited by the Koch brothers' spokesman are irrelevant to the constitutional issue involved here -- whether it is constitutionally permissible to require disclosure of money given and spent to influence candidate elections. And the Koch brothers' spokesman ignores the directly relevant, and recent, Supreme Court cases which have upheld such disclosure laws.

The Edsall column says that disclosure "remains the losing position" in the courts.

In fact, this is backwards. Just the opposite is true.

For nearly 40 years, campaign finance disclosure requirements have been consistently upheld as constitutional by the Supreme Court -- starting with the Court's landmark Buckley decision in 1976 and continuing as recently as the Court's Citizens United decision in 2010.

In Buckley, the Supreme Court held that the federal campaign finance disclosure laws were constitutional because they provide "the electorate with information 'as to where political campaign money comes from and how it is spent by the candidate' in order to aid the voters in evaluating those who seek federal office."

The Court in Buckley also upheld the disclosure laws on the grounds that "disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity."

In Citizens United, the Supreme Court, in an eight to 1one decision, upheld political giving and spending disclosure requirements for corporations, including nonprofit corporations, making independent expenditures. The Court said:

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.

The Supreme Court noted in Citizens United that it had upheld disclosure laws in earlier cases to address the problem that "independent groups were running election-related advertisements while hiding behind dubious and misleading names."

Even though the Court upheld the disclosure law in Citizens United, however, citizens have not ended up with effective disclosure. Instead they have ended up with hundreds of millions of dollars in secret contributions being laundered into federal elections.

The disclosure problems we now have do not stem from constitutional issues but rather from flawed FEC and IRS regulations that were used by outside groups to spend more than $300 million in secret contributions in the 2012 federal elections.

The two Supreme Court cases cited by the Koch brothers' spokesman to justify anonymous political giving do not support his claim.

The first case, NAACP v. Alabama, involved an attempt by Alabama to subpoena the NAACP's membership lists at a time when the organization was fighting for civil rights and when its members were the targets of murders, violence and serious physical harassment.

The Supreme Court reviewed the circumstances facing the NAACP and held that the organization was entitled to anonymity for its members.

It is beyond ironic for the Koch brothers, who are among the richest people in the world, to try to claim moral equivalence for their anonymous giving of political money with the life and death threats faced by members of the NAACP during the civil rights battles of the 1950s.

The Supreme Court was fully aware of its NAACP decision in 1958 when it upheld disclosure requirements for political giving and spending in its Buckley decision in 1976. In fact, the Court cited the NAACP case a number of times in its Buckley decision but did not find that the case undermined the constitutionality of the campaign finance disclosure requirements.

The Court said in Buckley that a group can seek an exemption from the campaign finance disclosure requirements if it can make a showing that disclosure would subject it to "threats, harassment, or reprisals." But the Court also made clear the exemption was exceedingly narrow.

The Court said that threats and harassment must create an actual -- not speculative -- burden on a group's freedom to associate in order to warrant exemption from disclosure laws.

In 2003, the Supreme Court in the McConnell case again rejected an analogy to its NAACP decision regarding campaign finance disclosure requirements.

The second case relied on by the spokesman for the Koch brothers is similarly irrelevant to the constitutionality of candidate-related disclosure requirements.

In McIntyre v Ohio Elections Commission, the Supreme Court held unconstitutional a requirement to disclose spending by an individual on some leaflets commenting on a bond referendum for local schools.

In striking down the disclosure requirement that applied to a referendum campaign, the Supreme Court explicitly distinguished the case from the kind of disclosure requirements for candidate-related spending that the Court upheld in the Buckley decision.

Moreover, the Supreme Court was fully aware of its McIntyre decision in 1995 when the Court upheld the constitutionality of candidate-related disclosure requirements in its Citizens United decision in 2010.

Justice Kennedy wrote in Citizens United that campaign finance disclosure requirements provide voters with the information they need to make "informed decisions and give proper weight to different speakers and messages."

The Koch brothers may each be worth $40 billion but their enormous wealth does not entitle them to any special treatment when it comes to the right of the American people to know about the political money being given and spent to influence federal elections.