When the Supreme Court sustained disclosure requirements of the Federal Election Campaign Act in 1976, in Buckley v. Valeo, it held open the possibility that campaign disclosure requirements might be invalid to the extent that they cowed small and traditionally persecuted groups into political silence for fear of retaliation. It drew upon the lessons of the civil rights era and earlier cases involving widespread public and official harassment of advocacy groups such as the NAACP.
Bopp raised those same arguments in California on behalf of the Proposition 8 crowd. But the federal district court was not persuaded. His clients, after all, backed the winners in that election, who spent millions of dollars and gained millions of votes in support of the long-established status quo, “traditional marriage.” That is a far cry from the civil rights advocates of the 1960s who risked their lives fighting a centuries-old system of legal discrimination and whose plight the Supreme Court had in mind when it decided Buckley.
Some Proposition 8 advocates argued that disclosing their names would be bad for business. An ice cream shop was picketed after its owner was identified as a donor. A dentist lost two patients. Other businesses suffered negative publicity online. One person was harassed by way of a Post-it note. Those arguments did not go far in the courts. It’s hard to argue that one’s free speech (in the form of money) should be automatically privileged over the vicious free speech (in the form of Post-it-notes) of those who would disagree.
Even boycotts of businesses and donors don’t constitute the kind of threats opponents of disclosure would suggest. For more than 70 years, the Supreme Court has recognized that nonviolent protests and picketing do not lose their First Amendment protections just because they may result in lost business. That principle got its strongest exposition 30 years ago, when the high court struck down a state court judgment against the NAACP, which had organized a boycott of white merchants in Claiborne County, Miss., to bring economic pressure to bear in support of integration. Organizers published the names of those who patronized white businesses in an effort to shame the black community into observing the boycott, and some of those patrons were the victims of violence. Despite these facts, the court found both the boycott and the public pressure on those willing to violate it were forms of political speech protected by the First Amendment.
There is a shameful irony in Mitch McConnell and James Bopp attempting to shield the political contributions of the well-funded establishment—indeed, in the senator’s case, the economic elite—from public gaze through a doctrine meant to protect the weak and disenfranchised; cynically invoking the legacy of the Edmund Pettus Bridge to let the Koch brothers write their massive checks in private. Overheated rhetoric about violent protest and “enemies lists” is supported by no factual showing. It’s a fantasy used to obscure the truth about who is buying and selling our candidates and state referendums.
Three years ago, James Bopp sued the state of Washington, seeking to prohibit the disclosure of names on a ballot initiative that would have put the question of repealing domestic partner benefits just extended to same sex couples to a vote. In 2010, the Supreme Court rejected the plaintiffs’ claim that making the names of those who sign petitions public always threatens to silence political speech because signatories might fear retribution.
Eight justices rejected that argument, none of them so strongly as Justice Scalia, whose distaste for political anonymity lead him to write separately a warning that merits repetition here, both with respect to the DISCLOSE Act, and the argument that truth must be hidden because some people may be mean someday.
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.
Someone should tell Mitch McConnell.