Citizens United, Take Two

The Supreme Court case that could help corporations keep their massive election spending secret.

| Wed Apr. 28, 2010 7:05 AM EDT

This week, congressional Democrats are crafting legislation to undo the Supreme Court's recent decision in Citizens United, which allowed unlimited corporate spending in elections. At the same time, the legal genius behind that case will be asking the court to take a whack at another long-standing pillar of campaign finance transparency: state disclosure laws. Call it Citizens United, take two.

On Wednesday, the Supreme Court will hear arguments in Doe v. Reed, a case from Washington state that looks at whether the public disclosure of referendum petitions violates signers' First Amendment rights to privacy, free association, and free speech. While important on its own, Reed is also a warmup for cases coming down the pipeline in California and Maine over whether disclosing the names of campaign donors violates free speech rights by exposing contributors to harassment and other unpleasantness. Together, these cases form a backdoor assault on one of the most accepted tenets of clean elections: that the public should be able to see where the money is coming from.

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The lawyer leading the attack on these states' disclosure laws is James Bopp, a leader of the Christian Right with an uncanny ability to spot weaknesses in campaign finance statutes and obliterate them via the First Amendment. The Hoosier attorney is almost singlehandedly responsible for dismantling big chunks of the McCain-Feingold campaign finance law. He is the brains behind the original filings in Citizens United, a case few expected to succeed. And while his clients in these cases are usually religious or conservative groups, the biggest beneficiary of these efforts has been, almost exclusively, corporate America.

The petitioners in Reed are an anti-gay marriage group called Protect Marriage Washington and two anonymous signers of a petition to put Referendum 71 on the ballot. That measure was an attempt to overturn Washington's "everything but marriage” domestic partnership law last year. Gay-rights activists had filed public records requests for the petitions, and some had promised to post the signers' names online. That prompted Protect Marriage to file suit to prevent the state from publicly releasing the petitions, arguing that disclosure could subject signers to harassment.

Bopp's brief says, "There are two great enemies of citizen participation in our Republic, corruption and intimidation in elections. Much attention has been paid to preventing corruption, but this case is about protecting the people from intimidation while engaging in core political speech.” The brief compares gay-marriage foes to civil-rights activists in the 1950s, invoking a legendary case that prevented the NAACP from having to disclose its membership rolls to the state of Alabama.

As proof of the potential dangers of disclosure, Protect Marriage directs the court to the aftermath of California's Proposition 8, the ballot measure that invalidated the state's gay-marriage law. It maintains that donors to the ballot initiative had lawn signs stolen, cars egged, and businesses boycotted. The brief extensively quotes emails sent to Prop 8 contributors. In what may mark the first time the term "douchebag” has been entered into the high court's record, Protect Marriage reproduces an email from "Julia,” who wrote:

The judge released the names today of the donors who supported Prop 8, and your name is on the list as having donated…to keep same-sex couples from marrying. Someday you will have to account for the fact that you refused to love they [sic] neighbor, but in the meantime I hope your hateful little life is full of oppression and injustice as this is the kind of life you wish for others. You're a queer-hating douchebag. Fuck you. Best, Julia.”

The potential of receiving such emails, Bopp argues, chills political speech and may prevent people from ever signing a petition again.

Washington state counters that signing a petition is hardly an anonymous action. Protect Marriage petition-gatherers set up shop outside places like Wal-Mart and Target, with 11-by-17-inch forms that allowed pretty much anyone to see who was signing. Protect Marriage also asked petition signers for email addresses, which aren't required. The state's lawyers suggest that Protect Marriage used them for fundraising appeals, and note that there's also no law preventing them from selling those names to list-brokers, a common practice.

Nonetheless, Bopp has already succeeded in keeping the Ref. 17 names under wraps for a year, winning an injunction from a federal district court in Washington. The 9th Circuit Court of Appeals reversed that decision, but then the Supreme Court reinstated the injunction and agreed to hear the case. The high court's interest in Reed should trouble anyone unhappy about the court's overreach in Citizens United. If the court finds that petition-signers deserve anonymity, it's not much of a stretch for it to decide that campaign donors should also be shielded, lest they get nasty emails about their political views.

Same-sex marriage opponents would certainly benefit from a victory in Reed, as there's evidence that the Prop 8 petition exposure did indeed deter some contributors to the anti-gay-marriage cause. But as with Citizens United, the real beneficiaries would be the big corporations now liberated to spend ungodly amounts of money in political campaigns. Those companies would additionally be able to spend opponents into the ground without letting the public know where the money is coming from, an outcome that could be far more chilling to the political process than a few stolen lawn signs.

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