Floyd Abrams v. Publius

There has been much gnashing of teeth over the allegation that the Russians, or more specifically, the very sexy Vladimir Putin, “stole” the election for Trump. If you hate Trump, this is an article of faith, believing it’s true because the government said so (because who doesn’t believe whatever the government says) and then, ignoring the rules of logic to conflate correlation with causation.

It may well be true, but there is no way to know, even if it is, whether it changed anything. But believing is enough to make a lot of otherwise smart people lose their minds. Politics, right?

Yet, what if you learned that the Super PAC or the non-profit that ran those killer political ads was funded by Russia? Or by a corporate giant? What if they were funding a disinformation campaign targeted at their interest and against yours, but concealed behind a wall of secrecy so that you, the American citizen, the voter, had no clue it was all manipulation? Not cool, right?

New York has taken the position that this is a violation of state ethics laws and demands disclosure of who is funding political position ads. After all, don’t you deserve to know if the Saudis put their money behind Pantsuit Nation? And the state has retained the Godfather of Free Speech, Floyd Abrams, to fight its cause.

Gov. Cuomo has hired prominent First Amendment lawyer Floyd Abrams to defend him against a federal lawsuit challenging a new law that requires politically active non-profit organizations to publicly disclose their donors.

Abrams explains why a lawyer who has become the poster boy for free speech has taken on the defense against it.

I have long thought — and so has the Supreme Court — that more disclosure of who is spending significant sums of money to persuade the public who to vote for and how to view public policy issues is not only not violative of the First Amendment but significantly pro-First Amendment in its impact. There are, to be sure,  exceptions to this when the identification of speakers will lead to threats, harassment or the like  (and such an exception is in the New York law) but as a general proposition more sunlight about such matters is not only good policy but consistent with well established First Amendment law.

There are other “exceptions” as well that get short shrift in this pitch.

In order to avoid harsh penalties, including fines and revocation of its registration, under Section 172-e, Citizens Union Foundation and similarly situated 501(c)(3)s must disclose publicly all donations over $2,500 whenever they make an in-kind donation of more than $2,500 to certain 501(c)(4)s engaged in lobbying activity. Not only does this requirement directly chill speech by 501(c)(3)s, but it imposes significant compliance costs on covered organizations. . . . Section 172-e simply has nothing to do with protecting against quid pro quo corruption or promoting transparency in campaign finance. These disclosure requirements thus reach much farther than the disclosure requirements upheld in Citizens United, which were targeted at “electioneering communications” that were related to electoral politics.

There are advertisements that promote a candidate and advertisements that promote a cause or perspective, which only incidentally promotes the candidate who shares these views. If a donor prefers anonymity, does that mean he (or it) forfeits free speech? You don’t have to agree with the donor’s desire for anonymity, but you don’t get a vote. It’s not your money or choice, and each of us gets to make our own choice as to whether we want to reveal our donations to causes.

Beyond the chilling effects of disclosure, and the potential to stifle donations, the cost of regulatory compliance is a real concern. While you may hold no sympathy for the billion dollar PAC, what of the small, barely funded groups? To the extent they have a voice, this sucks money out of their tiny coffers that could spell the end of their ability to express a view.

Lawprof Rick Hasen at Election Prof Blog is all on board with Abrams taking on this cause.

I think Floyd Abrams recognizes that campaign finance disclosure serves a valuable democratic function in helping voters make informed decisions in elections. I am pleased he has taken on this case.

From the perspective of election law, campaign finance disclosure makes a lot of sense. After all, there is no justifiable view that would endorse foreign money being used to manipulate American electoral decisions. And even if you’re of the view that corporations are people too, the shareholders of corporations aren’t necessarily Americans and their interests don’t necessarily align with those of anyone eligible to vote. It’s, at best, a highly controversial issue, usually guided by whose ox is gored at any given moment rather than any principled stance.

But then, what becomes of Publius?

From a First Amendment perspective, rather than election law point of view, this is a disaster. Free speech by anonymous speakers is not only protected, but long a fundamental tradition of American politics. That it is qualified by the amount a speaker contributes doesn’t save the principle from defeat. There is no principled reason why a person (or entity) who wishes to contribute $1 million dollars to fund the public dialogue is any less deserving of the right to anonymity than the person who forks over $20.

That Floyd Abrams has gotten on board on behalf of the governor and attorney general is significant, as he carries with him his gloss of being the pre-eminent protector of the First Amendment. If Abrams says this won’t undermine free speech, than who is anyone else to disagree? After all, it’s Floyd Friggin’ First Amendment Abrams. What more can you want?

This is a harsh reminder that we need to be careful about elevating advocates to god-like status, which can be too easy to do. No one (other than a majority of the Supreme Court), no matter how smart or well-regarded, gets the final say on what your rights should be. And between politics and self-interest, there is always the chance that an angel to a cause may fall from the heavens.

11 thoughts on “Floyd Abrams v. Publius

  1. RICHARD KOPF

    SHG,

    If Mr. Abrams is god-like, then Professor Hasen must be Moses-like. Or did I get it wrong?

    All the best.

    RGK

    1. SHG Post author

      For a groundling like me, they’re all so high up in the stratosphere of intellectual importance that I couldn’t possibly tell. I wonder how the air is on Mount Olympus?

  2. Paleo

    “There are, to be sure, exceptions to this when the identification of speakers will lead to threats, harassment or the like (and such an exception is in the New York law) ”

    In light of how awful our political culture is right now, and given that there are mobs of political zealots on both sides roaming the internet looking for people to hassle, isn’t it virtually guaranteed that donors unfortunate enough to have their names made public are going to be subject to threats and harassment? Wouldn’t that fact effectively nullify the law?

    1. SHG Post author

      The exceptions to which he refers are theoretical, not necessarily legal. But if you follow the political culture, you realize that whether responses are “threats and harassment” tends more to do with whether you agree with them and want to protect them or disagree and they get what they deserve. This makes the argument even more disingenuous and problematic, and bolsters why free speech either works as an overarching principle or not at all.

  3. Ross

    If someone wants to use a tax free charity to filter their speech, then the rest of us should get to see where the money comes from. Anyone who desires can publish their own speech, regardless of form, without using an intermediary. I am OK with requiring some concessions if they want a tax break for doing so. Want to spend $10 million to promote a revival of the Shaker life style as the future of America, go right ahead, but don’t force me to subsidize it by running it through a charity and getting a $3,8 million reduction in your taxes.

    Require disclosure of any sources of money that are more than 10% of the amount raised or over $X, where X is reasonably large, $100k perhaps. Or, require disclosure of the nature of donations received – I am far less worried about the influence exerted by $10 million raised from 2,000 contributors than I am of $10 million raised from 4 contributors. So, disclosing number of contributors by a value range would provide useful data on whether the position is supported by thousands or is the brainchild of a demented billionaire..

  4. D-Poll

    “After all, there is no justifiable view that would endorse foreign money being used to manipulate American electoral decisions.”

    I’ll take that challenge. Inadvisable? Perhaps.
    My view is that Americans should be able to listen to whomever they please who wants to speak before deciding how to vote. Persuasion isn’t the same as manipulation. These PACs don’t vote, and to the best of my knowledge have never put a gun to anybody’s head forcing them to vote a certain way; they just speak, and hand-wringing over whether the speech might convey the opinions of foreignians or billionaires is pure genetic fallacy. And the core motivation for this fallacious argument is nothing more than “oh my god, these proles are voting wrong! They must have been confused by the devilRussia!”

    1. SHG Post author

      Note carefully my use of the word “endorse,” as in, it’s a good thing for Russian money to covertly fund American political ads. Want to try again?

      1. D-Poll

        Hey, Russian money paying for American broadcasting jobs, what’s not to like? Granted, it’s not specifically better covert than overt, but I feel entitled (heh heh) to blanket-endorse Russian money funding American political ads in general without worrying about such pesky details.

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