SCOTUS Refuses to Review NOM’s Challenge to Maine’s Campaign Finance Disclosure Law

 

I didn’t have a chance to blog SCOTUS’s decision not to grant cert. in the case, NOM v. McKee, which grew out of a an investigation launched by the Maine Ethics Commission in 2009 after the National Organization for Marriage (NOM) failed to disclose its donors in its effort to defeat Question 1, which overturned marriage equality in the state.

Here’s a link to a series of discussions about the case by Rick Hasen on his ElectionLaw blog.

Back in the spring of 2010, I provided some pro-bono assistance to attorneys in the Maine Attorney General, drawing on my work on campaign finance disclosure in similar lawsuits in California, Colorado, and Florida, and my Election Law Journal article with Beth Garrett, Veiled Political Actors.

 

 

Jeb Bush champions full campaign finance disclsoure

Former Florida Governor, Jeb Bush, testifying before a House Budget Committee panel a couple days ago, championed the full transparency of all campaign donors.

Republic Report has the video:

BUSH: In a perfect world, we could have a different financing system. I love the idea of having campaigns be funded directly, rather than indirectly. And have no limits and total transparency so if people were offended by a large donor, the candidate, he or she, would have to accept responsibility for the message and the for the amount of money and who gave it. That would be, for me, talking about markets, rather than government control kind of response, that would be a better approach. […] I would suggest Congress should show more self-restraint about allowing that influence to change policy if that’s the view.

Why is disclosure necessary? Ask former FEC Chairman Bradley Smith

A good place to start is my 2005 Election Law Journal article, Veiled Political Actors, with Beth Garrett, and my 2010 Direct Democracy Scholars amicus brief in Doe v. Reed, which look at disclosure laws (and loopholes) in ballot issue campaigns.

I’ve written about disclosure in ballot issue campaigns elsewhere on these pages, and I think Justice Scalia articulated the necessity of transparency in a democracy his concurring opinion in Doe v. Reed, when he wrote:

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…Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

So, to think corporations will be cowed into submission, or be endangered by the “palpable” threat of “retaliation” and “reprisals,”in either ballot issue or candidate campaigns, as some critics of disclosure–such as former Federal Election Commission Chairman Bradley Smith now argue–I would only refer readers to Chairman Smith’s own writings. In his 2001 book, Unfree Speech, Smith grudgingly accepts a regulatory scheme grounded in disclosure. On p. 224 he admits:

Thus, there may be modest benefits to be had from a system that provides voters with information on the sources of campaign funds, through mandatory disclosure.

Indeed, disclosure not only provides “modest benefits,” it is the essential lifeblood of any democratic republic.

Ballot Measure Disclosure in California

Unfortunately, I do not have time right now to chime in on the very important ballot measure committee contribution disclosure lawsuit, ProtectMarriage.com, which is before the U.S. Court of Appeals for the Ninth Circuit.  I’ve served as an expert in several campaign finance lawsuits across the country, including the case California Pro-Life Council v. Getman (9th Cir. 2005), when my research was used to bolster the constitutionality of California’s ballot measure disclosure requirements.  I must say that it’s gratifying to see that my 2005 Election Law Journal article with Elizabeth Garrett that details the deceptive practices of “Veiled Political Actors” is once again being used to support the case for the public disclosure of the activities of ballot issue committee, as required under California’s Political Reform Act.

If you’re interested in the topic, I’d urge you to read the Campaign Legal Center’s amicus brief filed in ProtectMarriage.com v. Bowen

As the Legal Center points out in its press release, “In the last decade alone the Supreme Court has upheld disclosure laws by votes of 8-1 three times, most recently in Doe v. Reed.  In his concurrence in the case, Justice Scalia made very clear the importance of transparency to the health of our democracy:

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.  This does not resemble the Home of the Brave.”

As the lead author of the “Direct Democracy Scholars” amicus brief in Doe v. Reed, I couldn’t agree more with Justice Scalia’s wise words or the Campaign Legal Center’s analysis.

Opponent of Referendum Is Arrested

in Equatorial Guinea.

Now this is what “threats, harassment, and reprisals” look like when government regulations “seriously chill speech and association,” as attorney Jim Bopp and the plaintiff’s in Doe v. Reed failed to show when challenging the state of Washington’s public release of signed petitions for Referendum 71,  an effort by social conservatives to repeal the legislature’s bill granting same-sex civil union protections.

In fact, if the politically-motivated arrest of a supporter of Referendum 71 in Washington for suspicion of murder had occurred, U.S. District Court Judge Benjamin Settle likely would have supported an as-applied challenge to Washington’s Public Records Act.  But alas, as Settle noted, “… if a group could succeed in an as-applied challenge to the PRA by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations that are not necessarily even related or directly connected to the issue at hand, disclosure would become the exception instead of the rule.”

Justice Antonin Scalia wrote pointedly in his concurring opinion in Doe v. Reed why public disclosure is necessary, and how it can embolden citizens in the U.S.

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…Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Rather than a threat to individual liberty, public disclosure is a bulwark against government oppression, as we’re seeing in Equatorial Guinea.