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The Supreme Court, campaign finance and petition secrecy: It could be worse than you think

Back in October, my conservative collaborator Ben Boychuk made the argument that voters will be fine if corporations are allowed to spend unlimited money in elections because, hey, we can all see what’s going on:

Transparency and instant Internet disclosure make most of the old objections and warnings about quid pro quo corruption irrelevant. If a political candidate receives the financial aid of large corporations, and public knows about it, then the question of undue influence falls to the voters to resolve. As it should be.

Theoretically, this sounds great. In reality, though, there’s a good chance that transparency itself is going to become extinct.

Why do I say this? Because the Supreme Court is being asked to rule that petition signers — 138,000 people who asked Washington State to hold a referendum to overturn the state’s law allowing domestic partnerships for gays — have a First Amendment right not to have their names made public. The court has blocked the release of those names until it rules on the case.

The rationale for blocking transparency? Gay marriage opponents don’t really want to be criticized. They’d like to be able to use government to deprive other citizens of rights without having to be made to feel uncomfortable about it.

Voters ratified the law, but the conservative Christian groups that sponsored it want to keep the signed petitions that asked for the referendum out of public view because they fear harassment from gay-rights supporters, some of whom have vowed to post the names of petition signers on the Internet.

“We are pleased that the Supreme Court has agreed to hear this case that seeks to protect the rights of citizens who support a traditional definition of marriage to speak freely and without fear,” said James Bopp, Jr., lawyer for Protect Marriage Washington. “No citizen should ever worry that they will be threatened or injured because they have exercised their right to engage in the political process.”

So here’s my question: If the Supreme Court says that petitioners have a First Amendment right to keep their names private while supporting a public campaign, why on Earth wouldn’t that rationale also apply to people (and corporations) who donate to campaigns? Maybe there’s a good legal distinction, but I can’t think of one right now.

Ben’s right: The effects of corporate money flooding campaigns can be somewhat counteracted by know who is spending the money and where it’s going to. Soon, though, we might not even have that. And what we’ll have is millions upon millions of dollars being spent to sway voters without those voters having any understanding of how the system is really working. That’ll be good for corporations and the candidates they support. But it won’t be so good for the rest of us — or for our democracy.

  1. Ben Boychuk Says: Jan 21 2:17 PM

    “The rationale for blocking transparency? Gay marriage opponents don’t really want to be criticized.

    That’s half-right. Giving money is speech. The vast majority of people who give money to campaigns do not think about politics the way those of us who write about it for a living do. People who feel a certain way about an issue send a check for $100 to a candidate and a campaign and that’s the extent of their argument.

    I don’t think I could disagree with you more, however, when you assert that these people don’t want to be “criticized” — as if the anti-Prop. 8 mobs that cost Margie Christoffersen and Scott Eckern out of their jobs were interested merely in “criticism.” That was rank thuggery and intimidation, nothing more. Remember, too, that Prop. 8 opponents helpfully linked the names and addresses of Prop. 8 campaign donors to Google Maps. I’m unaware of widespread threats and intimidation, but you don’t really suppose that the sort of people interested in where their political opponents live want to have a civilized debate, do you?

    And I’m also not sure the court will go the way you think. I haven’t had a chance to read through all of the opinions yet, but the justices held 8-1 that McCain-Feingold’s disclosure requirements are constitutional and remain in force. The names and addresses of people who sign petitions is a different matter for all sorts of reasons. I sign ballot measure petitions all the time, even though I’m on record disparaging the initiative process and I tend to vote no on just about everything. My signature, in other words, is not necessarily indicative of my support. I suspect I’m not alone, especially since I actually read the petition language and often question the signature gatherers.

    What’s more, although it’s become more difficult lately, it’s much easier to forge signatures and addresses on ballot petitions than it is to fake campaign donation information. (But as we saw in 2008, faking or hiding campaign donor information is as easy as cake.)

    In short, while the act of signing a petition and the act of donating money to a campaign are both types of speech, they are different in degree and in kind.

  2. Tony18 Says: Jan 21 2:36 PM

    “I’m unaware of widespread threats and intimidation, but you don’t really suppose that the sort of people interested in where their political opponents live want to have a civilized debate, do you?”

    It’s nice that you acknowledge the lack of truth to this right-wing myth. But to rule in favor PMW would make the initiative system even worse, as it would essentially allow for people to legislate with anomynity given the way initiatives work.

    If these people want to affect these kinds of changes to our laws in this manner, then they should be able to stand up to public scrutiny. And no amount of fear-mongering about groups of gay people going around and harassing innocent gay marriage opponents will change that.

  3. Ben Boychuk Says: Jan 21 2:56 PM

    Tony, since you elide an answer in your comment above, I’m curious if you would you care to share your ideas why it’s necessary to overlay Prop. 8 donor names and addresses with a Google map? A school exercise in showing the miracles of modern information technology, perhaps? Free marketing assistance for conservative and Christian right causes?

    Here are a couple of other questions you successfully avoid answering. Why is it that after nearly a century of practicing the initiative, the referendum and the recall, and nearly 20 years of direct democracy on steroids in places like California, only now there is a compelling public interest to reveal the names and addresses of petition signers?

    What precisely do you mean by “public scrutiny”? And would you blanche at being scrutinized for signing a petition for some “progressive” cause? I think I can guess the answer — and it has something to do with my suspicion that “18″ is not your legal surname.

  4. Nunya Says: Jan 21 3:25 PM

    The culmination of a decade of individual rights being rolled back is the official affirmation of the rights of the corporation.

  5. matt rose Says: Jan 21 3:36 PM

    Proposition 8 is not only a direct imposition on the lives of people living in California (what would you say if I told you who you can or can not marry?).

    So these petition signers what to impose specific restrictions on individuals. But they do not want to other people (outside their group) to know that they support a big goverment and want to interfere in my family and my life.

    They want to impose laws from a secret bunker. Yeah. sounds like the kind of America I want to live in (sarcasm). Next they’ll start passing laws, but we won’t be allowed to know what the laws are, or what laws we’re accused of breaking.

    The justification for putting their addresses on Google maps is this : Anyone seeking to restrict the rights and interfere in the family of another person has an obligation to to individually explain themselves.

    Free Speech from anonymous peoples. . . quite an oxymoron. That’s not free. That’s cowardice.

  6. The Supreme Court, Campaign Finance & Petition Secrecy : Gay News from Gay Agenda – GayAgenda.com Says: Jan 21 3:40 PM

    [...] the more thought-provoking and fair political blogs (and I’m not saying that sarcastically) Cup o’ Joel which addresses the Supreme Court’s decision to block the names of those who signed the [...]

  7. Deregulator Says: Jan 21 4:18 PM

    So Matt, I suppose the authors of the Federalist, Tom Paine, Sam Adams, and the colonial pamphleteers who chose to conceal their identities were cowards, too/

  8. trailmix Says: Jan 21 6:30 PM

    How is “overlaying prop 8 names with google maps” not free speech? You can’t have your cake and eat it too.

  9. Ben Boychuk Says: Jan 21 7:11 PM

    Jesus Christ. Where did I say it wasn’t? I’m asking about means and ends and you’re answering me with cliched bullshit. Is anyone going to answer my questions?

  10. trailmix Says: Jan 21 8:30 PM

    So group A engages in free speech and says “blah blah blah”. Group B thinks it’s pointless for anyone to say “blah blah blah” and wants to join a group that protects them from having to hear “blah blah blah”. There is no “freedom of hearing” in the Constitution, only freedom of speech. Personally, I believe it’s my right to know EXACTLY who is engaged in lobbying, advertising, asserting, influencing and corrupting opinion regarding any laws that are passed underwhich I must live. That includes Prop 8. Will you feel more comfortable when a state-run chinese corporation begins an anonymous massive advertising campaign for it’s favorite pro-offshore jobs candidate? Or would you rather pass a law that gives you the power to know who is pulling the wool over your eyes? I suspect the answer depends on whether or not the “law” in question is one you favor.

  11. trailmix Says: Jan 21 8:33 PM

    One last comment: Freedom of speech does not protect you from the repercusions of having said it, only your right to say it in the first place.

  12. Corporations Will Choose Leaders Now - Tennessee Gun Owners Says: Jan 22 4:57 PM

    [...] has another ruling due, as to privacy of campaign contributions. As this newspaper writer says: The Supreme Court, campaign finance and petition secrecy: It could be worse than you think | Cup o&#… "The effects of corporate money flooding campaigns can be somewhat counteracted by know who [...]

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