Doe v. Reed: Bopp v. Scalia

Attorney James Bopp is on a crusade – in his words, a “10 year plan” – to annihilate every American law regulating money in politics. And, over the years, he’s had some success. In the case of Randall v. Sorrell, for instance, he successfully argued that campaign contribution limits can be so low that they violate candidates’ political rights. Recently, Bopp enjoyed his most significant win yet when a bare majority of the Court struck down longstanding limits on corporate political spending in Citizens United v. FEC.

Now, Bopp has moved to his next battleground: disclosure. In Bopp’s view, any type of compelled disclosure – such as laws requiring that funders of political attack ads reveal their identity – violates core speech rights. Bopp advocates a never-before-recognized “First Amendment right to privacy” that would invalidate scores of laws geared to promote transparency and openness in the political process.

Yesterday, in the case of Doe v. Reed, Bopp presented his vision of the First Amendment to the Supreme Court, arguing that signers of a Washington state ballot initiative petition should be exempt from a general law that makes such signatures public. There, Bopp met a formidable opponent: Justice Antonin Scalia.

Cutting Bopp off in the middle of his opening statement, Justice Scalia started grilling Bopp about the implications of recognizing a broad right to anonymous political activity just so that individuals can avoid public criticism: “What about requiring disclosure of campaign contributions? . . . Why doesn’t that fall within your principle that no person should be exposed to criticism? . . . You are asking us to enter into a whole new field where we have never gone before.”

As Scalia’s questioning highlighted, allowing broad exceptions to generally-applicable disclosure laws would cripple the public’s ability to engage in the type of uninhibited, robust, and wide-open political debate our country has cherished since its founding. This is particularly troubling in the campaign finance context – undoubtedly, voters have a compelling interest in knowing who is funding candidates and ballot initiatives so that they can make educated choices at the polls. As Scalia put it, “you can’t run a democracy this way, with everybody being afraid of having his political positions known.”

It remains to be seen how the Supreme Court will resolve the Doe v. Reed case. The oral argument made clear, however, that Bopp’s fight against disclosure will not be an easy win. Indeed, after the first round, the score is undisputed: Scalia 1, Bopp 0.