We wrote here about the Democrats’ effort to clamp down on 501(c)(4) organizations–the only entities where Republicans raise more money than Democrats–by requiring such groups to disclose their donors. They have proposed the DISCLOSE Act, which would require such disclosure of 501(c)(4)s, but not of 501(c)(3)s–where the Left is strong–or unions.
In the linked post, I wrote about the fact that a hearing on the DISCLOSE Act was scheduled today before the Senate Committee on Rules and Administration. The scheduled witnesses included Heather Gerken and Dan Tokaji, both of whom are members of 501(c)(3) organizations that do not disclose their donors, and that receive support from the Democracy Alliance, which we wrote about here, and which also does not disclose its donors. I wrote:
The Democrats’ hypocrisy on the subject of “dark money” is important, and one hopes that Republican members of the Senate Committee on Rules and Administration will have the wit to point it out.
I think Senator Pat Roberts read my post. This is a transcript of his questioning of Heather Gerken, who testified on behalf of the DISCLOSE Act:
SEN. ROBERTS: Thank you, Mr. Chairman, thank you both for coming and giving excellent testimony. Mrs. Gerken, your testimony did not endorse the DISCLOSE Act, or at least that is how I read it. But in terms of your commentary, I think that you support it. Do you endorse it?
HEATHER GERKEN: You know, no one has ever asked me if I endorse anything because I am not a senator, so I do think that 1) we do need more disclosure rules for the 501c4s. I think 2) this act is constitutional, it’s narrowly tailored and sensibly targeted at the right opportunities.
SEN. ROBERTS: Do you support it?
HEATHER GERKEN: I would support it. If I were in your shoes, I would vote for it.
Odd that it took so much effort to get her to endorse the legislation on behalf of which she testified.
SEN. ROBERTS: Okay, well you are not in my shoes. They would be a little different shoes in this chair. You like cowboy boots?
HEATHER GERKEN: I’m a New Englander, we do not wear cowboy boots.
SEN. ROBERTS: Well, that is part of your problem. Your bio indicates that you were a senior legal advisor to the Obama campaign in 2008, 2012. The president has been criticized for attending fundraisers in the midst of a number of international crises. Last week he was in Manhattan attending a fundraiser for the House Majority PAC. That is a super PAC dedicated to electing a Democratic majority in the House. The House Majority PAC is one of a number of groups that get support from the Democracy Alliance. Another group that gets support from the Democracy Alliance is the Scholars Support Network. You are a member of that. Is that correct?
Roberts’ information came from our post, presumably.
HEATHER GERKEN: That’s right.
SEN. ROBERTS: Following its annual meeting at the Ritz Carlton in Chicago this year, POLITICO reported on a memo to the board of the Democracy Alliance that contained the recommendations on how to respond to media inquiries about the conference and its participants. This is what the memo said: “As a matter of policy, we don’t make public the names of our members. Rather,” the memo goes on, “the Alliance abides by the preference of our members. Many of our donors choose not to participate publicly and we respect that. The Democracy Alliance exists to provide a comfortable environment for our members to collectively make a real impact,” end quote. Why would disclosure make some of the members of this Alliance uncomfortable?
HEATHER GERKEN: So, I actually don’t know the reason for that, I am simply a member of the organization. But I will say this, there is a fundamental difference between many of the organizations that we are talking about here and those that are trying to affect politics with large amounts of money. The reason why Justice Kennedy—
SEN. ROBERTS: Would you agree to this—and I’m sorry to interrupt, but you’ve only got four minutes here although the chairman has been very liberal with his time allowance. Do you agree that this desire to remain comfortably anonymous should be respected?
HEATHER GERKEN: I will say that if you are trying to use large amounts of money to influence politics than you should do what the justice says and have the civic courage to have your name publicly listed. So I am in support of this bill, and if the Scholars Strategy Network tried to start to influence politics with large amounts of money, I would be in favor of disclosure.
SEN. ROBERTS: Does the Scholars Support Network publicly disclose its donors?
HEATHER GERKEN: I actually don’t think it does, but I don’t know the answer to that question. As I said before, it is not trying to influence—
SEN. ROBERTS: Shouldn’t that be respected?
HEATHER GERKEN: It isn’t trying to influence federal elections, and if it were, this bill would ensure that it would in fact disclose all of the donors that were trying to do so. That is the key to this bill. This bill allows for the privacy of a variety of groups engaged in public activities to remain anonymous, but when they try to influence elections, that money is –
SEN. ROBERTS: Got it.
HEATHER GERKEN: …that money must be disclosed, and I support that heartily.
SEN. ROBERTS: Got it. As a 501c3, it is not supposed to engage in any political activities. Is that right?
HEATHER GERKEN: A 501c3 has a variety of requirements about 501c3s, about what it means. But as a general matter, they are not supposed to.
Now the trap springs shut.
SEN. ROBERTS: Then how is it that the Scholars Support Network has been supported by the Democracy Alliance, which stipulates that each organization it supports be politically active and progressive?
HEATHER GERKEN: So the Scholars Strategy Network is a very simple thing, it is designed to do something that academics are very bad at, which is to figure out how to convey their ideas to the broader public and to policy makers. You have thousands of universities across the country generating good idea after good idea by people who barely go outside during the day; who have never talked to a reporter, who have certainly never spoken to a senator and have no idea how to convey their ideas in a broader way. That network takes a bunch of people who are basically nerds and convey their ideas to the world.
SEN. ROBERTS: Sort of a nerd network?
Not clear whether Ms. Gerken realizes that she is being gently mocked. Liberals generally don’t see themselves as partisan left-wingers, they are just nerds and wonks.
HEATHER GERKEN: It is a nerd network. But it is a policy oriented network that helps get ideas that are already in the public arena to policy makers.
SEN. ROBERTS: I have every confidence that the chairman of the committee sitting to my right gets calls a lot from nerds and all sorts of other people. I do, even in Kansas, the University of Kansas, Kansas State, Wichita University, we have a lot of nerds, new England has nerds…I can testify there are nerds in Kansas.
Now Roberts gets serious. What follows comes straight from this post:
What abut the American Constitution Society? At the Chicago conference, it took credit for helping to make possible the Senate rule changes imposed by the Majority Leader that led to the confirmation of quote “progressive” judges to the DC Circuit. You have also been involved with the American Constitution Society, is that correct?
HEATHER GERKEN: Yes, I have.
SEN. ROBERTS: Do they publicly disclose their donors?
HEATHER GERKEN: I don’t believe that they do. However, if the DISCLOSE Act were passed, if they were engaged in using large sums of money to influence politics they would be required to disclose their donors and that would be a good thing for democracy.
This is incorrect. The DISCLOSE Act explicitly exempts 501(c)(3)s from its disclosure requirements. It is remarkable that Ms. Gerken is not very familiar with the statute on behalf of which she is testifying.
SEN. ROBERTS: Well, my point is that you would recognize that the changes to the rule and the appointments to the DC Circuit were somewhat politicized, would you agree with that?
HEATHER GERKEN: You know, in this world almost everything is politicized, I suppose.
It is if you’re a liberal.
SEN. ROBERTS: I understand. Would the DISCLOSE Act apply to 501c3s?
Gerken gets the answer to this question wrong:
HEATHER GERKEN: The act is going to apply to any organization that uses big money to influence politics. If 501c3s are engaged in some politicking then they do something very simple which is they segregate their funds. This is a traditional strategy used by many organizations to keep separate these types of donations. And that means that donors, for example, who want to suppot the American Constitution Society’s general activities can give money without giving to politics. But if they want ACS to use that money to influence politics, the election system, then they have to have a segregated fund. It’s a very simple and elegant solution to the type of problem you are describing here.
A staffer now points out that Gerken is wrong, and the DISCLOSE Act will not under any circumstances apply to 501(c)(3) organizations like the ones to which Ms. Gerken belongs.
SEN. ROBERTS: I don’t know…oh, I have been informed here that it doesn’t apply to c3s—so should it?
HEATHER GERKEN: If a 501c3 would like to start to influence…to start to do things outside of the usual ambit, and it starts to take in large quantities of money that are going to be used to influence elections, then it is going to have to disclose those activities. They would become 501c4s presumably.
SEN. ROBERTS: I think you are talking about a regulatory morass, but anyway, thank you so much for answering my questions.
Why are the Democrats carrying on this selective war against “dark money,” which is itself, ironically, funded almost entirely with dark money? Democrats want to be able to identify conservative donors so that the Obama administration can use federal agencies to take revenge on them; so they can try to get them fired (like Brendan Eich); and so union goons can lead busloads of demonstrators onto their lawns. When liberal ideas have to compete with conservative ideas, they consistently lose. So the Democrats want to intimidate conservative donors in order to have the political field to themselves. There is nothing noble about their selective enmity toward “dark money.”