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The Hounding of Brendan Eich Gives New Cover to Defenders of Dark Money

Drew Angerer/Getty Images

As if there weren’t enough reasons for liberals to have misgivings about the hounding of a Silicon Valley executive over his $1,000 check to an anti-same sex marriage campaign, there’s also this: the episode is giving cover to those fighting to keep secret the vast sums of dark money flowing into American politics.

When the Supreme Court’s 5-4 ruling in McCutcheon v. Federal Election Commission last week eliminated overall limits on how much wealthy donors could contribute to candidates, parties and political action committees in a given campaign cycle, supporters of the decision rationalized that it would be better for democratic accountability because these contributions would be public. Being able to give vast sums directly to candidates and parties, the theory goes, makes it less likely that wealthy donors will feel the need to write big checks to outside groups that often do not disclose their donors’ identities.

Sounds nice, except it overlooks the fact that many donors are giving to those shadowy outside groups precisely so that their identities can remain hidden—American Crossroads, the group co-founded by Karl Rove, spent $50 million on the 2012 campaign through its main entity, for which contributions must be disclosed and $123 million through Crossroads GPS, which doesn’t have to disclose its donors because it’s set up as a 501(c)(4) group focused on “social welfare” rather than elections. This pro-transparency rationalization of McCutcheon would also hold more weight if those advancing it—such as Republican Senate leader Mitch McConnell—supported disclosure by election-focused 501(c)(4)’s like Crossroads GPS. Instead, McConnell has repeatedly led successful filibusters against a bill to require disclosure of large contributions to major election-focused "social welfare" groups.

Indeed, the McCutcheon ruling would seem to offer an opportune moment for advocates of greater disclosure to advance their cause: to essentially take the court’s conservative majority and its Republican supporters up on their own logic, and say, "So, you think disclosed spending is better than undisclosed spending? OK, great. Then let’s disclose more spending.”

Except at the very moment that McCutcheon has provided that opening, along comes the forced resignation of Brendan Eich, the Mozilla CEO who had given $1,000 to the campaign for anti-same-sex marriage Proposition 8 in California, to give new cover to the anti-disclosure forces. Opponents of requiring disclosure by 501(c)(4)’s and by corporations engaged in political spending have for a while now been arguing that secrecy is needed to spare big spenders from persecution. They’ve invoked the precedent of the NAACP, which fought during the Civil Rights era to keep its supporters anonymous against attempts to force disclosure by Southern segregationists, but their attempts to come up with contemporary victims of disclosure have been less than persuasive.

There was Frank VanderSloot, the billionaire founder of multilevel-marketing “wellness products” company Melaleuca who claimed he had come in for IRS audits because he had given $1 million to a SuperPAC supporting Mitt Romney. There was Target, which found itself subject to a boycott campaign over its $150,000 donation to a group backing an anti-gay-marriage gubernatorial candidate in Minnesota—one could debate the merits of that boycott campaign, but it was entirely within reason to ask why the company was spending a serious chunk of shareholder money in that fashion. And then there are of course the Koch brothers, who are miffed that they are being held up to scrutiny when their group, Americans for Prosperity, is spending tens of millions of dollars to bash Obamacare and Democratic senators.

None of those victims was particularly sympathetic. But now comes Brendan Eich, who was hounded out of his job for giving a mere $1,000 to a cause that, whatever one thinks of it, drew the financial support of thousands of other Californians and, indeed, won at the polls. And the anti-disclosure forces are making the most of the opportunity to enlist Eich in their cause. From the Wall Street Journal editorial page:

The resignation under pressure late last week by Mozilla CEO Brendan Eich for opposing gay marriage is a disturbing episode for corporate governance as well as for the traditional tolerance of other points of view in American life. Some of our liberal friends have been dismissing our warnings about the politics of personal vilification emerging on the left, but here is a case study…

Mr. Eich's treatment is another reason to rethink our views on campaign-finance disclosure laws. Years ago we supported reform that would deregulate campaign donation laws in return for immediate online disclosure.

But Justice Clarence Thomas made us think with his concurring opinion in 2010 in Citizens United that dissented on disclosure. "I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in 'core political speech,' the 'primary object of First Amendment protection,'" he wrote.

Justice Thomas knows how Southern racists tried to subpoena NAACP membership lists for intimidation purposes in the Jim Crow era. The Supreme Court ruled this was a violation of the First Amendment right of association. In our current age of growing liberal intolerance, Justice Thomas's warning takes on renewed meaning.

From the Heritage Foundation’s Hans von Spakovsky:

The resignation of Mozilla CEO Brendan Eich over a personal $1,000 donation he made in 2008 in support of California’s Proposition 8 shows the dark side of campaign disclosure laws and how liberals are using them to intimidate, harass, and bully anyone who disagrees with them on social and cultural issues….

…What has been happening in recent years is no different then what racist government officials in Alabama were trying to do in the late 1950s when they subpoenaed the NAACP’s membership lists. Fortunately, the U.S. Supreme Court ruled against the state in NAACP v. Alabama (1958), holding that the state’s actions violated the Fourteenth Amendment and interfered with the free associational rights of the NAACP’s members.

…Moreover, the ability and right to engage in anonymous political speech and activity—and making contributions is a form of political speech—used to be considered common sense.  The Federalist Papers were published under pseudonyms and one of the most famous and stirring pieces of writing in American history—Thomas Paine’s Common Sense—was first published anonymously because of the danger to its author for publishing such revolutionary ideas. The same threats those authors and others throughout our history have faced for expressing ideas not in conformity with the ruling passions of the day are today being faced by Americans like Brendan Eich….

What’s next? Special reeducation camps for anyone who disagrees with them?

From Walter Hudson at the conservative Minnesota blog True North:

Campaign finance law banning anonymous contributions chills speech in the same way public ballots would. When compelled to disclose campaign contributions, people cannot act freely upon their conscience. Donors must consider possible retaliation from parties who would not otherwise be privy to their beliefs or associations. Privacy emerges as a derivative of property and free association. Mandatory disclosure violates both, and thus violates privacy.

It’s a stretch, to say the least, for zillionaire donors writing secret checks to Crossroads GPS to put themselves in the same company as the NAACP and Thomas Paine. But the activists who hounded Brendan Eich over a $1,000 donation just made it a bit easier for opponents of transparency to pull off that brazen gambit.