Someday political scientists will try to date the decline of reasoned discourse in America to the moment when the left and the right began to invent their own facts. Climate change deniers, the purveyors of lies linking abortion to breast cancer, and creationists will all be blamed for the end of meaningful debate between liberals and conservatives. But that’s not quite right. The real end of civic discourse can be traced to the new conservative argument that facts themselves are dangerous.
It’s a dangerous contention not just for what it hides, but also for what it reveals: a lack of any other arguments.
It’s tough times for facts in America. First Mitt Romney—interviewing for the position of president—declined to release his tax returns because, as he explained, the Obama team’s opposition research will “pick over it” and “distort and lie about them.” He isn’t actually claiming that his opponents will lie. He’s claiming he’s entitled to hide the truth because it could be used against him. As Jon Stewart put it, “You can’t release your returns, because if you do, the Democrats will be mean to you.” These are tax returns. Factual documents. No different than, say, a birth certificate. But the GOP’s argument that inconvenient facts can be withheld from public scrutiny simply because they can be used for mean purposes is a radical idea in a democracy. It has something of a legal pedigree as well.
Probably not coincidentally, last week Senate Republicans filibustered the DISCLOSE Act—a piece of legislation many of them once supported—again on the grounds that Democrats might someday use ugly facts against conservatives. The principal objection to the law is that nasty Democrats would like to know who big secret donors are in order to harass, boycott, and intimidate them. The law requires that unions, corporations, and nonprofit organizations report campaign-related spending over $10,000 within 24 hours, and to name donors who give more than $10,000 for political purposes. Even though eight of the nine justices considering McCain-Feingold in Citizens United believed that disclosure is integral to a functioning democracy, the idea that facts about donors are dangerous things is about the only argument Senate Republicans can muster. Last week even Justice Antonin Scalia told CNN’s Piers Morgan that “Thomas Jefferson would have said the more speech, the better. That's what the First Amendment is all about. So long as the people know where the speech is coming from.”
That’s a ringing defense of the need for disclosure, which Scalia has always supported.
Yet GOP senators aren’t brave enough to have true facts on display anymore. For Republicans, the truth is almost Nixon-esque now. Here’s Mitch McConnell comparing the disclosure requirements to an “enemies list” last Tuesday: “This amounts to nothing more than member and donor harassment and intimidation, and it's all part of a broader government-led intimidation effort by this administration. There are parallel efforts at the FCC, SEC, IRS, DoJ, and the White House itself to silence its critics. The creation of a modern day Nixonian enemies list is currently in full swing and, frankly, the American people should not stand for it. As I've said before, no individual or group in this country should have to face harassment or intimidation, or incur crippling expenses defending themselves against their own government, simply because that government doesn't like the message they're advocating.”
If those claims sound familiar, it’s because these are precisely the arguments donors from the National Organization for Marriage recently raised in an unsuccessful 2009 legal challenge to a California statute that requires political campaigns to disclose the identity of donors who contribute more than $100 to their cause.
Supporters of Proposition 8—the California same-sex marriage ban enacted with substantial out-of-state financial support, and recently overturned by the Ninth Circuit—alleged that disclosing their identities would expose them to harassment by political opponents, and the contested statute cast a cloud of intimidation over the exercise of their protected First Amendment rights.
The plaintiffs in that case submitted dozens of sworn statements (many of them anonymous) to a federal judge in Sacramento, chronicling what they characterized as past abuse and harassment. While the court found their evidence to be somewhat exaggerated, it was quick to condemn the few genuine acts of violence and vandalism involved. Nonetheless, the court found those incidents too few and too isolated to outweigh the compelling interest California had in the public disclosure of campaign contributions: preventing the threat of corruption, while letting the public know where campaigns got their cash, information which itself plays a role in helping people decide how to vote.
The California case was brought by James Bopp, a conservative Indiana lawyer, who has relentlessly challenged campaign disclosure laws in the courts with only limited success. Mitch McConnell borrowed a page from his playbook last week when he warned that forcing deeply established and well-funded groups to make their donations in the bright light of day would invariably bring howling mobs to their doors. In an effort to do away with transparency, McConnell needs to paint an apocalyptic image of wealthy donors in fear for their very lives. Enemies lists! Intimidation! Nixon!!!!