The proliferation of super PACs and their organizational push for 501(c)(4) support has generated debate about disclosure. Last week, however, the debate shifted back to another familiar disclosure question: whether the government may disclose the identity of those petitioning for a ballot issue. The question had risen through the Ninth Circuit in a case called Doe v. Reed, and reached the Supreme Court in 2010.
Washington State permits its voters to challenge state laws by referendum. 4% of voters must sign a petition to secure that referendum. Signatories must provide their name and address, and the state verifies that information when it receives a petition. Names and addresses later become discoverable under the state’s public information law. For that reason, the Doe plaintiffs sought injunctive relief. They argued that the state disclosure law was unconstitutional on facial grounds, and as applied to them. The district court granted relief on plaintiffs’ facial challenge: that the disclosure imposed an unconstitutional burden on plaintiffs First Amendment rights. As a result, the lower court never reached plaintiffs’ as applied challenge. After the Ninth Circuit reversed on appeal, the Supreme Court granted cert.
Writing for an 8-1 Majority, Justice Roberts affirmed the Ninth Circuit and rejected the facial challenge. Questioning whether disclosure chills speech, and noting that disclosure combats fraud, increases transparency, and ensures democratic accountability, Justice Roberts leaned on the Court’s landmark campaign finance case, Buckley v. Valeo. In a powerful concurrence, Justice Scalia asserted that:
“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
That rhetoric presaged the Court’s doubt about the plaintiffs’ potential to prevail on their as applied challenge. In that challenge, the plaintiffs asserted that they were and would be subjected to harassment because of their advocacy. Plaintiffs’ were targeting repeal of domestic partner rights for same-sex couples. Though he did not decide the issue, Justice Scalia reminded that “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self- governance.” He, along with Justices Stevens, Ginsberg, Breyer and Sotomayor, would have rejected the as applied claim. Regardless, the Court remanded to the district court for further proceedings.
The district court succinctly summarized the legal framework within which it would evaluated the as applied challenge. It noted that in Buckley the Supreme Court recognized:
“The State’s interest in preserving the integrity of the electoral process is undoubtedly important. States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally.”
To evaluate the disclosure law’s constitutionality, then, the district court asked whether there was “a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.” That standard is derived from a long line of Supreme Court cases that includes NAACP v. Alabama, Brown v. Socialist Workers, as well as Buckley, Citizens United, and Doe. Those cases, the district court said, also establish that:
as-applied challenges have been successfully raised only by minor parties, . . . having small constituencies and promoting historically unpopular and almost universally-rejected ideas.
To finishing teeing up its assessment of the facts in Doe, the court drew on Justice Sotomayor’s Doe concurrence to assert that threats, harassment, or reprisals need to be pervasive, and need to impact those bringing the as applied challenge.
Turning to the facts, the district court was unsatisfied that the Doe plaintiffs had satisfied the requisites for securing an exemption from disclosure. The court doubted whether plaintiffs represented a sufficiently marginalized view to meet the “historically unpopular and almost universally-rejected” standard. It also dismissed the relevance of anecdotal evidence from other state campaigns to repeal marriage-equality or rights-parity legislation. Having done so, it evaluated Doe’s evidence of harassment, threats, and reprisals, concluding that Doe’s evidence did “not rise to the level or amount of uncontroverted evidence” necessary to sustain as-applied challenges.
With Doe decided, attention will turn to California. There, proponents of proposition 8 have initiated litigation to suppress their identities. Some believe that the litigation is unlikely to succeed after the Doe (on remand) ruling. Whatever the outcome in California, Doe v. Reed on remand has and will incite argument. Has the government inappropriately cabined anonymous speech? If disclosure does impose harm on an individual, do existing remedies effectively address those harms? Can further government action, like strong employment discrimination laws or systematic law enforcement, cabin harms?
It seems like there is a tension here between two different types of speech activity and the interest in anonymity in each. On the one hand, you have normal political advocacy, speech in the public forum trying to influence perceptions of particular issues or candidates. This kind of speech has a history of tolerating anonymity back to Publius and prior, with an understanding that challenging the status quo and the individuals in power is best done without fear of personal reprisal.
On the other hand you have participation in electoral politics, which requires registration and attaches a vote to a name. The interest in preventing electoral fraud, particularly when all a person did was sign a petition, requires some level of verification that the person is who they say they are and that they have the right to participate in electoral politics in that jurisdiction. Though this interest doesn’t lead to the conclusion that the petitioners names must be released, it suggests that absent real evidence of potential or actual harm, valid participation in the petition process should be verifiable by any concerned citizen. It would be interesting to see how many groups challenging the ruling in Doe v Reed and the disclosure of the Prop 8 supporters have also used public records laws to find mistakes in the voter rolls and challenge progressive groups’ voter registration drives.
There is still an open question, though, of whether corporations and labor unions, representing their shareholders and members respectively, should have the same right to speak anonymously as a private citizen. Citizens United came with a caveat from Justice Kennedy on the importance of disclosure, but that would be contrary to the way we treat individual citizens who speak to influence politics. Is there a justification in this line of case law that would deny anonymity to large organizations while granting it to individuals? On top of that, are we sure we want anonymity for individuals when the concern for the lonely pamphleteer certainly does not apply to the Koch brothers and other super wealthy individuals? Where should the line be drawn?
A couple preliminary points, just off the top of my head.
One can draw a distinction between the pamphleteer and the signatory to a petition. While the former is only exercising First Amendment speech rights, the latter is exercising First Amendment speech rights and occupying a quasi-legislative function–casting a vote for a referendum. Intuitively that line seems fairly strong. While calling your representative to ask that she propose legislation may not have any discrete impact on the legislative process, signing your name in support of a ballot initiative does. Signing your name, in short, feels like voting. Drawing that line, however, begs another question. Why is “voting” to get an initiative on the ballot, different than voting by secret ballot in an election. That presents difficult questions, ones often answered by distinguishing the referendum process from other electoral processes.
As to the point about corporations and people: Whenever any entity–natural or artificial contributes to a political campaign or artificial–contributes to a campaign or airs an ad, their information is disclosed. In that respect the requirements are the same. Whenever either entity gives to a 401(c)(4), they remain anonymous, though the 501(c)(4) may make contributions or run ads. Are you referencing a different type of speech?
On anonymous speech broadly, many point to the Federalist Papers and also to a case called McIntrye. That said, I haven’t seen overwhelming evidence supporting a right to anonymous speech. That I haven’t seen it by absolutely no means suggests it doesn’t exist. But the McIntyre Court recognized that where government has a compelling interest that satisfies strict scrutiny, it can compel disclosure over anonymous speech objections. The Court has consistently upheld disclosure regimes under that logic, and the Doe language further entrenches that.