On August 6, 2013, the Alabama Policy Institute (API) received a letter from United States Senator Dick Durbin (D-IL) asking API to disclose its membership in the American Legislative Exchange Council (ALEC) and declare whether API supported “stand your ground” model legislation.
Senator Durbin noted that he was “sending similar letters to other organizations that have been identified as ALEC funders at some point between 2005 and today.” He further states that he plans to “convene a hearing…and intend[s] to include the responses…in the hearing record.” While API has been associated with ALEC over the last several years and routinely defends the constitutional right to bear arms, API was not the intended target of the letter, and the Second Amendment was not the relevant issue.
Durbin’s letter is a thinly-veiled attempt to intimidate supporters of free markets, limited government, and other points of view that Senator Durbin opposes. By publicly connecting these supporters to “stand your ground” laws that have become racially charged flash-points, Durbin hopes to drain financial support for conservative groups like API and undermine their broader policy work which includes restraining government spending and preventing nationalized healthcare.
In a recent Chicago Tribune piece, Durbin notes that as a public official, he must “file annual financial disclosures, campaign finance reports and have to face the scrutiny of public opinion.” He would like the supporters of private non-profits that promote conservative public policy issues to face the same scrutiny.
Public officials were wrong to use their office to intimidate members of the NAACP in the 1950s, and Senator Durbin needs to understand that those same tactics are just as wrong today.
Sadly, the historical record is replete with public officials using their elected office to trample on the constitutionally protected right of free speech, the right to petition the government, and the right of free association. Especially during the McCarthy and civil rights eras, public officials across the nation used government intimidation as a weapon to stifle political dissent.
The State of Alabama once agreed with Senator Durbin’s perspective in regard to another private non-profit organization that engaged in public policy issues, the National Association for the Advancement of Colored People (NAACP).
In 1956, the State of Alabama demanded the NAACP’s membership list in an effort to push the group from the state under the guise of violating business law. In fact, Alabama sought the NAACP’s bank statements, leases, deeds, and records that contained the names of each Alabama member.
After years of legal wrangling, the Supreme Court issued an opinion inNAACP v. Alabama that serves as a constitutional benchmark for the rights of speech and private association in America.
The NAACP argued that “the effect of [government-]compelled disclosure of the membership lists abridge[d] the rights of its rank-and-file members to engage in lawful association in support of their common beliefs.” The organization further noted that even governmental action which does not directly suppress association, may nevertheless have that effect.
The Court held that the “compelled disclosure of [the NAACP’s] Alabama membership” would be used to “induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of [the] exposure.”
The state replied that the negative impacts from the compulsory disclosure would likely come from private reaction rather than the government, but the Court noted that the “crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power…that private action takes hold.”
As a long-serving member of the Senate Judiciary Committee, Senator Durbin knows the law and is aware that he cannot compel organizations like ALEC, the NAACP or API to disclose their members or supporters.
Instead, he sent a letter on his official letterhead to intimidate over 300 companies and organizations based solely on the mention of their names in public filings. More importantly, his request makes no mention of a response being voluntary.
The Constitution protects private associations, advocacy groups and unions from this type of government-led intimidation. Public officials were wrong to use their office to intimidate members of the NAACP in the 1950s, and Senator Durbin needs to understand that those same tactics are just as wrong today.
Cameron Smith is vice president and general counsel for the Alabama Policy Institute, an independent, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families. If you would like to speak with the author, he may be reached 205.870.9900, at firstname.lastname@example.org or on Twitter @DCameronSmith.