On June 24, 2010, the U.S. Supreme Court issued its ruling in Doe v. Reed, in an 8-1 opinion with a dissent by Justice Thomas. In the opinion written by Chief Justice Roberts, the Court held that disclosure of information on petitions for ballot referenda does not, as a general matter, violate the First Amendment, but that compelled disclosure is subject to review under the First Amendment. The facial challenge has been rejected, but the Court held that remand on the as applied challenge is warranted. Justices Breyer, Sotomayor and Stevens filed separate concurrences.
In Brief – In Doe v. Reed the Supreme Court decided if the state of Washington can mandate the disclosure of the names of citizens who sign petitions for ballot initiatives. In an amicus that supports neither side, on behalf of the Center for Responsive Politics and the Sunlight Foundation, the Brennan Center urges the Supreme Court to craft a resolution to the case without impinging upon existing constitutional doctrine regarding disclosure laws in the sphere of money in politics.
Argument Presented – The Brennan Center argues that the Court must recognize that this case does not involve the issue of disclosure of money in the context of political campaigns and candidates. Money in politics is different in kind from other election regulation issues. Where money is spent to influence the outcome of elections, vigilance is required to ensure that influence peddling does not corrupt our democracy and that voters are empowered to make informed decisions about how such spending may have influenced their candidates and laws.
Procedural History – On July 28, 2009 Plaintiffs filed a motion seeking to enjoin the state of Washington from releasing the names and contact information of individuals who signed petitions in support of a ballot measure to overturn the state of Washington’s domestic partnership law and restrict the rights and responsibilities of marriage to married heterosexual partners. On September 10th a district court enjoined the Secretary of State from releasing the names, however on October 15th the Ninth Circuit ruled that the names were subject to disclosure. Four days later, on October 19th, the Supreme Court issued a stay of the Ninth Circuit’s decision.
Summary of Argument –
The Brennan Center argues that the Supreme Court has consistently recognized that special constitutional and public interests arise in the context of disclosure laws that bring to light the too often hidden flow of money through our political system. A clear and unbroken line of Supreme Court authority holds that campaign finance disclosure provisions serve anti-corruption and informational interests critical to a vibrant and functioning election system. Buckley v. Valeo, 424 U.S. at 1, First Natl. Bank of Boston v. Bellotti., 435 U.S. 765 (1978); Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999) (“Buckley II”), McConnell v. Fed. Election Comm'n, 540 U.S. 93 (2003). Indeed, the Supreme Court's recent Citizens United decision specifically reaffirmed the necessary role of campaign finance disclosure laws in our democracy.
Ignoring this ruling, as well as the unique constitutional context of money in politics, Petitioners attempt to elide the distinction between campaign finance disclosure laws and other forms of public disclosure laws that do not directly implicate political spending, such as the application of the Act at issue here. Indeed, Petitioners go further, devoting the first six pages of their brief to extra-record factual submissions regarding a law and an issue that is not before this Court—the effect of California's campaign finance disclosure laws on contributors to that state's Proposition 8 campaign. Petitioners devote additional pages of their brief to other supposed factual consequences of campaign finance disclosure laws, and conflate case law from the campaign finance context with other disclosure laws without any apparent regard for the unique interests that come into play when money enters the realm of politics. Petitioners thus invite the Court to fashion a radically broad and hitherto undiscovered right to anonymous speech that would overturn decades of the Court's precedent by refusing to differentiate between laws requiring disclosure of other activities and laws that disclose the uniquely problematic workings of money in politics.
The Brennan Center urges the Supreme Court to reject this improper invitation. As a procedural matter, with regard to the sphere of campaign finance disclosure regulations, neither the factual allegations nor the constitutional issues raised by Petitioners are properly before the Court. With respect to the actual issue presented here, the Court may, and indeed should, address the constitutionality of the Washington statute, and the possible disclosure of the names of the individuals who signed the ballot initiative petitions in question, without reaching the separate factual and legal questions interests to be weighed in evaluating disclosure requirements aimed at monetary influence on the electoral process. More fundamentally, the curtain of privacy that is appropriate to the voting booth should not be drawn to hide the workings of money in politics from public scrutiny and from political accountability. Petitioners’ broadest argument, if accepted, could usher in a new dark age for our politics, where corruption could flourish undetected and voters mark ballots in ignorance.
Devereux Chatillon, Mark P. Johnson, and Rebecca Hughes Parker of Sonnenschein Nath & Rosenthal LLP are co-counsel on the brief.