Since I announced Friday the formation of Accountable America to educate the public about right-wing and business-oriented groups and their leaders and donors, some conservatives have reacted with outrage and asserted First Amendment issues.

These harsh reactions, though, have been isolated.  Americans across the country, still angered by the false and vicious Swift Boat attacks in 2004 and concerned about their new counterparts in 2008, have embraced the announcement, and since our launch we have raised tens of thousands of dollars over the Internet without spending a dime on advertising or email lists.

Nonetheless I want to expound on the rationale for engaging in this effort.  It is rooted in deeply-held views about democracy and elections.

First, it is my right.  Free speech like mine is especially protected when the information is of “legitimate concern to the public,” which I would argue is inherent in a political or public policy debate – as the Supreme Court declared 44 years ago in New York Times, Inc. v. Sullivan, there is “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”

Conservative groups and their donors have the same rights, and I honor and respect them for exercising them.  And, part of public debate is having one’s speech and political activity met with other speech and political activity, including criticism and freely posed challenges to the credibility and interests of the messengers and their financiers.  Nobody, including Accountable America and me, is owed some sort of immunity from criticism, and certainly the principal funders of conservative groups are not exempt simply because they are rich, influential or prefer privacy despite their ventures into the public sphere.

As First Amendment scholar Thomas Emerson argued, “Any individual living among others is, by the very nature of society, subject to an enormous amount of comment, gossip, criticism and the like. His right to be left alone does not include any general right not to be talked about.”

Inherent in our freedom of speech is what, for lack of a better term, I’ll call the “Accountability of the Public Square.”

What comes with our freedoms is accountability, in the sense that others may comment on or ignore what we do and support or oppose our efforts.  We put our reputations on the line when we engage in the public square.  Accountability goes hand-in-hand with freedom of speech.  Accountability means accepting and enduring a measure of transparency.  Accountability addresses what a friend of mine once called “the tyranny of the annoying.”

The donors to Freedom’s Watch put themselves out there last year in a very public way—they disclosed themselves.  So too do donors to federal PACs, state PACs and nonfederal “527” groups, as well as do those who contribute to candidates and political parties.  Donors enter into these transactions fully aware that they will be disclosed – in fact, many of them seek the disclosure for business or social status or political advantage.

I am not unaware of the downside to disclosure.  Some associations should be allowed to remain in secret.  Confidential membership is an important guard against oppressors, would they be governments, employers, neighbors or the media.  

And, the federal laws that govern political and other groups make certain distinctions about donor disclosure: near-complete disclosure for 527s of all kinds, non-disclosure for 501(c)(3) charities, c(4) advocacy groups and c(6) trade associations, and some disclosure for c(5) labor unions.  Until those laws are amended or found to violate the Constitution, they should be obeyed.

I also believe that the freedom of association does not allow a bunch of plutocrats to do whatever they want regardless of these and other laws that apply to the public square.  Look only at the John McCain campaign last week.  There may be a clear subversion of federal election law by Hess Oil executives that was only exposed by an independent watchdog group, and initially ignored by the media.  Without disclosure this situation would remain unknown.

And BCRA—more popularly known as the McCain-Feingold Law—explicitly sought to end the influence over candidates and national political parties of massive, unrestricted contributions.  Yet Senator McCain is meeting August 15 in Aspen with some of the super-rich donors who are writing checks to various conservative political groups. (See: Aspen Daily News )  What will these donors think when he says, “Thanks for all your support”?

The primary way Accountable America will expose the roles of conservative and business-related groups will be through “publicity” as Louis Brandeis described it: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”  He did so in a 1933 book called Other People’s Money, and How the Bankers Use It, a timely effort to inform the public about how the plutocrats of that age sought and took advantage before and amidst the Great Depression.  

Today, there is no less need to expose the commercial interests, relationships and power of those who found, lead and finance conservative groups that aspire to decide elections and shape legislation.  And, if they have broken the laws or otherwise engaged in corrupt activity, then that too should be on the public record and considered by those they seek to influence.

Accusations that I engage in hyperbole and portray matters in ideological terms are certainly fair at times.  But can those who are the subjects of some of my speech admit that they’re using their money to profit off the government and ordinary citizens?  Or acknowledge that legitimate questions can be raised about their behavior?  For example, the chairman of the largest conservative group in question is reportedly under investigation for bribery in Florida, according to the Palm Beach Post.  Surely, that information ought to be circulated and considered.

It seems that only in Washington is it viewed as a credible posture to cry foul over efforts by independent citizens to seek accountability in the public square, including making a legitimate claim for shame when shame is due.

And then there is the law. I have learned in my own work raising money for independent groups and campaigns that legal and tax consequences are big concerns even for people so wealthy that they consider them almost irrelevant from a financial perspective.  

Accountable America seeks to make a point to donors that they are in the best position to obtain accountability from groups that seek their support, not accountability for the wisdom of their politics or the tenor of their advocacy, but in the groups’ compliance with the laws that actually govern their fundraising, spending and disclosure.  

I am not saying that ordinary donors are or should be liable themselves – it’s the groups that unlawfully adopt the wrong legal status that could put them at risk or be compelled to disclose what they assured their donors would be private.  (And no, Accountable America did not use any report or information filed with the FEC in creating its own mailing list.)

I believe, for example, that Freedom’s Watch is primarily a political organization and as such should operate as a 527 and not a 501(c)(4), and that Americans for Job Security similarly should operate as a 527 and not a 501(c)(6).  I can’t identify any non-electoral activity that these groups are engaged in, can you?  Or any sign of significant spending on legislative or policy matters?  If they operated correctly as 527s that would make all the difference in enabling the public to learn who funds them, just as honorable 527 groups on the left and the right do every single day.
If the IRS determines that they should have operated as 527s, then their donors will be revealed, as the law requires.

I believe that every donor has the right to fund any organization in any amount, in accordance with the law.  I don’t advocate making the law more stringent so that it squelches association or inhibits public debate, and I prefer clearly delineated legal standards over broad and subjective ones.  

I strongly believe that the law should not lightly characterize speech and association as electoral, because doing so triggers restrictions and reporting that are more than ordinary people can or should bear.  That is entirely consistent with supporting a system of laws and enforcement that insists that the wealthy and powerful adhere to the same rules that apply to everyone else – particularly when they are devoting massive resources to influence how people think, act and vote.

In my time working in politics I learned how to obey the law and where the lines are, and I have seen legal bills that could’ve sent me to law school 2 or 3 times.  Let me put it more plainly: I know what these folks are up to, and we all have a right to say so.

Accountable America will not hire investigators or look for or solicit or accept information that is protected by law or other obligations. The Internet has reorganized and expanded the public square, and there is very little a Lexis or Google search of news and other public sources can’t tell us about these organizations and their funders – so long as they obey laws that require them to add their own disclosures as well to the public square.

Again, our plan is to provide a little more sunshine—only rats and cockroaches are afraid of sunshine.