Tag: disclosure requirements

More on Disclosure and Intimidation

Today Politico Arena asks:

Are conservatives hypocritical to argue for eliminating campaign finance restrictions and disclosure requirements, which they once supported, or does their argument regarding donor harassment carry some weight?

Roger Pilon made some good points about conservative donors facing harassment, which might explain shifts in conservative sentiment on the issue. In my own response, I tried to remind readers that people on all sides of controversial issues have reason for concern about disclosure and intimidation:

There are good arguments for disclosure, especially with regard to contributions to candidates: Let the voters see who might be influencing a candidate. Of course, there are lots of people who have influence without being major donors - mayors and governors, leaders of voting blocs and interest groups, editors and publishers. Maybe they should all be identified, too.

The case for disclosure is even weaker when it comes to supporters and opponents of initiatives. In that case there is no officeholder to influence. Once the law is passed, it’s the law. And we do know that there have been instances of bullying and intimidation based on donor disclosure. In the past both the NAACP and the Socialist Workers Party have petitioned to protect their donors from publicity and resulting abuse. Many businessmen shied away from supporting term-limits efforts to avoid offending incumbent officeholders. A couple of decades ago, people didn’t want to be known as contributors to gay-rights causes; these days, it may be worse to be known as an opponent of gay rights. In either case, disclosure has a chilling effect on political involvement.

The problems with disclosure may be greater today because of the increased polarization of politics and the role of the internet in both encouraging polarization and making it easy to identify and expose donors. Disclosure is a complex issue, but we should not ignore the chilling effect it can have on political engagement.

Even Unpopular Causes Get Full First Amendment Protection

Under Washington’s constitution, a popular vote must be ordered on any bill passed by the legislature if a specified percentage of state voters sign a petition for a referendum. Washington’s Public Records Act makes public records, including such referendum petitions, available for public inspection. In 2009, opponents of same-sex marriage used the referendum procedure to attempt to reverse a state law which expands the rights of state-registered domestic partners. Proponents of the law sought access to the petition and two of the petition signers sought a preliminary injunction to prevent disclosure of their personal information, arguing that the PRA violates their right to speak anonymously.

The Ninth Circuit Court of Appeals held that the right to access trumps the right to anonymity. The Supreme Court granted certiorari to determine whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels the public release of identifying information about petition signers, and whether compelled disclosure of such information is narrowly tailored to a compelling government interest.

Cato filed a brief supporting the petition signers, in which we argue that the Court should establish a bright-line rule prohibiting laws that mandate the full disclosure of petition signers’ identities and contact information. Public disclosure carries significant burdens and unconstitutionally chills the exercise of First Amendment rights when no compelling government interest is at stake.

If the Court finds that the state has a compelling interest in public disclosure, disclosure exemptions are constitutionally required. Failure to require exemptions would permit the government to suppress the expression of offensive or unpopular ideas and would discourage individuals from associating in the first place.

Finally, our brief argues that even exemptions are not a substitute for strict scrutiny and provide inadequate protection where disclosure is not justified by compelling state interests. Exemption rules still chill speech, by their nature as an ad hoc process without fixed standards; the government is ill-suited to identify which groups should be exempt from disclosure, as is evidenced by their poor track record of erroneously suppressing controversial or unpopular speech.

The case, Doe v. Reed, will be argued in April.