Over the last decade, a new epithet has made the rounds of the perpetually perturbed: "dark money." A calmer descriptor is anonymous political advocacy. Those who frequently use the term "dark money" fancy that such funds are shelled out by evil special interests plotting to undermine American democracy with creepy political commercials and mailers that twist the truth. The term was coined by a left-leaning special-interest group, itself plagued by scandals. The fact that this group obscures the source of much of its funding through donations laundered through other shadowy special-interest groups is a reminder that irony will always be in style.
Nonetheless, repeating the phrase "dark money" like an incantation, several state lawmakers, judges and city councilors are proposing new laws that would criminalize anonymous speech intended to influence policy or politics. This newish trend of government commissars forcing sponsors of political speech to be named is dangerous and ahistorical.
The tendency to target people based on unpopular views has bloomed out of control and is responsible for people losing their jobs and, in some cases, having their lives threatened. Doxxing—the pernicious practice of releasing private information on the internet as an intimidation tactic—grows more common every year. And political donors are ripe targets.
If we're genuinely interested in discussing the best policy ideas for our nation, the advocate of the proposal ought to be immaterial. The despicable among us may offer a few great ideas, and the noble may suggest some clunkers. The person backing a proposition is much less relevant than the merits of the notion itself. Either a policy helps to solve a problem within the scope of government, or it doesn't.
But, sadly, that's not the ethos of this era. All too often, immersed in Facebook foolishness and Twitter twaddle, Americans prefer demonization to dialogue. Making fun of a person requires much less thought and reason than critiquing an initiative. "Tax doorknobs? Only a stupid person like Frankie would propose that!" Some folks imagine that such criticism has the same moral force as an evaluation of the pros and cons. They're wrong.
Three of our most able Founding Fathers understood this well. When Alexander Hamilton, John Jay and James Madison sought to convince their fellow countrymen to support the newly drafted U.S. Constitution, they drafted numerous essays discussing the virtues of the document. To avoid these principles being colored by the reputations of the three authors, they wrote The Federalist Papers under a pseudonym.
The need for anonymous speech was obvious enough for the U.S. Supreme Court to once note: "Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." Even more to the point, the high court has ruled that anonymous political activity "is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority."
The First Amendment protects freedom of speech, which often includes the ability of political advocates to speak anonymously. Yet assault with the weaponized phrase "dark money" persists apace.
In another large dose of irony, many of those who disparage "dark money" no doubt cheered a recent account from The Atlantic, which put forward the curious allegation that President Trump spurned a chance to visit a European cemetery filled with American war dead because they were "losers" and "suckers" for dying. This offbeat assertion is what overeager journalists call a tip that's "too good to check." In that spirit of zeal, The Atlantic ran the piece with only anonymous sourcing. Others—including critics of the president—went on the record to refute the allegation.
Reporters rightfully praise the remarks of former Supreme Court Justice Louis Brandeis, who once wrote, "Sunlight is said to be the best of disinfectants." So, in alliance with these new efforts to further extend the rays of sunshine, I suggest we call The Atlantic article, and all other reporting based on anonymous sourcing, "dark journalism."
While I'm not recommending such a rule, arguably, more public good would come from requiring journalists to name their sources than forcing non-candidate political committees to identify donors. Political efforts typically advance ideas and candidates. Yet all too often, reporting like the kind done by The Atlantic lobs allegations that demand needed verification—but which anonymity precludes. Worse yet, the claims made by anonymous sources in the court of public opinion are not subject to the constitutional protections found in the court of law, where accusers must step into the sunlight and be confronted by those they accuse.
If dark money is dangerous and worthy of government regulation, so too for dark journalism. To be sure, reporters have First Amendment freedom of press protection, which includes the legal license to print or air stories with anonymous sourcing. Yet that same constitutional amendment may also shield those who seek to advance political ideas anonymously via dark money.
John Adams famously remarked that the U.S. Constitution "was made only for a moral and religious people. It is wholly inadequate to the government of any other." If the First Amendment becomes a shield for scoundrels who couldn't find true north on the most calibrated moral compass, perhaps more regulation is in order. If so, there's little support for the premise that dark money must be exposed, while dark journalism can continue wallowing in the shadows. A consistent approach is needed.
Mark R. Weaver is a partner at an Ohio law firm who has argued First Amendment cases in several courts. The former deputy attorney general of Ohio, he is the author of the communications book A Wordsmith's Work. Twitter: @MarkRWeaver.
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
