The Religious Right Fought to Overcome Campaign Limits and Now Fights to Shield Donations from Public Disclosure: Why?

Posted in: Constitutional Law

In 1997, a minister chastised me for using the term “religious lobbyist.”   It was taboo to treat religion as though it were engaged in political lobbying—even if it was. There was also a taboo about speaking negatively about religion generally—even if true.

That was before the Boston Globe series on the Catholic Church’s sex abuse cover ups; the revelations that a primary motivation behind the Religious Freedom Restoration Acts (federal and state) is to discriminate, whether it be to violate the fair housing laws or refuse to do business with the LGBTQ community; and the rising threat to herd immunity from those who refuse to vaccinate their children, as I discuss in a recent column. Let’s just say that the taboo against talking about religion frankly is now history.

But what about the taboo on describing religious entities’ role in politics? Also history.

Take for example, the Church of Jesus Christ of Latter-day Saints’ apparent belief that they could heavily fund the fight against California’s Proposition 8 without detection. That did not work. Fred Karger dug into these issues and won. As he explains:

Ten days after the Prop 8 election, I filed a sworn complaint with the California campaign ethics’ office, the Fair Political Practices Commission (FPPC).

The FPPC took the case. It prosecuted the Mormon Church and conducted an 18 month investigation into all the Church did to pass Prop 8. The FPPC found the Mormon Church guilty on 13 counts of election fraud and fined them.

The Church amended its political expenditure filings and admitted to spending $190,000 that it had never reported. It produced documents with the names of 75 Mormon Church employees in Salt Lake City who had worked on the campaign. It turned out the Church had run phone banks from Utah and Idaho to call California voters. They had 25,000 Mormon Church members walking door-to-door all over California on the nine Saturdays before the election. They bused in Church members from Utah for rallies. The Mormon Church made 12 slick commercials, hosted elaborate web sites and even organized a massive lawn sign program for their members.

Common Cause Issues Revealing Report About the Role of the Religious Right in the Deregulation of Political Spending

Common Cause, a nonpartisan, citizen advocacy organization, has issued a fascinating and troubling report, entitled: Unlimited and Undisclosed: the Religious Right’s Crusade to Deregulate Public Spending. Common Cause investigated how the religious right fought for the deregulation of political spending, and won in Citizens United v. FEC, which held corporations have First Amendment free speech rights and cannot be prevented from making “independent expenditures” in elections. The religious right, per Common Cause, is a collection of groups dedicated primarily to the pro-life and anti-same-sex marriage causes.

Apparently, the agenda was not limited to erasing campaign-spending limits. They also have fought for the ability to contribute large amounts while keeping those contributions anonymous. This latter agenda has been less successful, according to Common Cause:

Although Citizens United has been an asset to litigants challenging some state-level campaign finance limits, set to litigants challenging some state-level campaign finance limits, the decision has proven decidedly less helpful in the conservatives’ drive to hide spending on campaigns and ballot measures. In its decision, the Supreme Court explicitly cited transparency and disclosure as a tonic to the potential for undue influence that unlimited independent expenditures in political campaigns could unleash. In praise of disclosure, the Court wrote, “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” Lower courts have frequently cited this passage from Citizens United as they have rejected challenges to the constitutionality of state laws requiring full disclosure of expenditures seeking to influence the outcome of elections.

But these bumps in the road have not deterred the groups.   The report ends with the conclusion that the religious right’s frontier is now to find ways to avoid disclosure of those independent, generous political contributions.

I will leave it to the election law experts, political scientists, and politicians, to analyze this very interesting report from their areas of expertise. From where I am sitting, though, I have to ask: Why?

Why the Push for Secrecy?

Why would right-wing religious entities be so interested in making large political contributions that are secret? I won’t pretend to know their interior motives, but there are some clues in the report that might well provide some illumination on their purposes.

First, who are the specific groups that constitute the religious right in this fight? According to Common Cause, there are several organizations: National Right to Life Committee, the Christian Coalition, the National Organization for Marriage, and Focus on the Family, and CitizenLink. Several issues bring them together, they invest primarily in an anti-abortion and anti-same-sex marriage platform. But that anti-abortion position also encompasses an anti-assisted suicide position. And the anti-same-sex marriage stance boils down to basic anti-homosexual views.   These are issues that are frequently debated in public at every level, so why the need for secrecy in political donations?

On abortion, they have no question moved the meter to the right, and turned Roe v. Wade into something of a paper tiger, with one restriction after another upheld in the courts, aside from outright prohibition in the early months of pregnancy.

Their other position, however, is decidedly less popular. Most Americans do not disapprove of euthanasia. A 2014 Gallup poll showed 7 out of 10 American support euthanasia, and states that this has been the public’s position for 20 years.

On same-sex marriage, national polling shows a steady erosion in support for their opposition since 1996. That is particularly true among young people. The Pew Foundation found last year that 61% of young Republicans support it.

Citizens United opened the floodgates for interest groups to heavily influence elections according to their wealth, but it did not deliver the full power to obtain ends that are unpopular among the people. According to Common Cause’s report, that is the next step in the religious right’s agenda. One reason appears to be that they have lost the battle over core issues, but intend to win the war regardless.

Under the Spotlight but Seeking the Darkness

The taboo against criticizing or reporting on religious entities–other than a positive gloss about worship or saints—is broken. Who benefits? Those who were being hurt in silence: from clergy sex abuse victims to children dying of medical neglect to women suffering from domestic violence and LGBT being marginalized and “converted.”   This increase in accountability and justice is good for us all.

This new drive to push large political funding under the radar is just another attempt to construct a new taboo cloak.