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The fight for marriage equality could have turned out very differently.
Imagine it’s 1989. Congress is about to pass a law forcing nonprofits to disclose their donors. The groups don’t get involved in elections, but they do call on elected officials to support or oppose specific policies — like marriage equality. The politicians who oppose it are the ones pushing this law. They want to see who’s really behind the so-called “radical homosexual agenda.”
Imagine how the advocates of marriage equality feel after the law passes. There aren’t many, but they’re running a nationwide campaign. A courageous few are publicly leading the cause, while many more are supporting it behind the scene, including through nonprofits. They’re quietly making space for others to join a groundswell of support.
They’re afraid. They know that public sentiment isn’t on their side (it will be more than a decade before support reaches even 26%), or at least that people aren’t ready to admit their true views. They know they have a long way to go. And they know they’ll never make it if the political class discloses their identity and puts them on trial in the court of public opinion.
Imagine how fast America turns on these brave people once they’re outed. Politicians on both sides of the aisle go after them. Republicans and Democrats alike denounce them for “undermining morality” or worse. They pressure employers to fire marriage-equality supporters (something that was already a regular practice), while getting their own political allies to pile on with insults and attacks. Violence against the LGBQT community, which was already bad, reaches new and horrible highs.
Imagine how the fight for marriage equality is lost.
Of course, this didn’t happen in 1989. But it could happen to other causes in 2021. The victims will be those who donate in supporting any number of views that don’t enjoy widespread public approval, and even those who simply have the gall to disagree with the people in power.
Such are the stakes surrounding S.1, a real bill in Congress today. It’s the Senate version of H.R. 1, dubbed the For the People Act. There’s no question America needs to protect voting rights. But nearly a third of the bill cuts at the heart of free speech. Specifically, it guts people’s privacy, which is a big reason why justice movements like marriage equality have succeeded over the years.
H.R. 1/S. 1 would force nonprofits that engage in issue advocacy to publicly release the names of even their small-dollar donors. It’s important to understand what these groups do. Those that engage in elections, are already required to disclose their donors. This bill targets groups that don’t engage in elections but do provide Americans with a deeper understanding of public policy issues that have drawn the ire of the political class, which now sees an opportunity to scare them into silence.
Politicians are trying to justify the measure’s restrictions on free speech by claiming it will end the era of “dark money.” This is a canard. Leaders on both sides of the aisle routinely use this phrase to criticize advocacy campaigns that challenge their power. Yet the Supreme Court has long recognized that people’s ability to choose how or if to share what causes they donate to is protected by the First Amendment, not least because politicians often try to silence those doing the speaking.
Groups from across the ideological spectrum know what’s at stake. The American Civil Liberties Union has criticized the bill’s speech-related provisions, saying: “We know from history that people engaged in politically charged issues become political targets and are often subject to threats of harassment or even violence.” Civil rights activists experienced the truth of this statement in the 1960s. And recently both parties have engaged in similar tactics. In 2013 the IRS targeted conservative nonprofits. And Black Lives Matter supporters experienced it in 2020, after the Justice Department began an investigation of the group’s funding. These are obvious attempts to intimidate and silence political enemies.
If H.R. 1/S. 1 passes, political attempts to stifle speech will spread even further than they already have.
In a country with such recent history of political violence, imagine how much worse things would be if the donors to every cause had to consider what their opponents might do to them when their support was made public? Imagine how many people would be shamed and silenced, and how many more would silence themselves. Imagine how much harder it would be to find consensus, tackle America’s biggest challenges, and move the country forward. If this happens in 2021, there’s no telling how much progress we’ll be missing in years to come.
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