Ronald D. Rotunda
We all think that more is better than less. Too much of a good thing is a good thing. The law often requires disclosure of campaign contributors because voters want to know if a major contributor will have special access to the elected official.
Yet too much disclosure can be a bad thing if it imposes costs that outweigh benefits. Sunlight is the best disinfectant, but too much sun causes skin cancer.
Right now, a federal judge in San Francisco is deciding whether the U.S. Constitution creates a right to gay marriage. However the judge decides on that issue, the Supreme Court will also decide another issue: May the court televise the proceedings when the video enables viewers to harass or harm the witnesses?
A similar issue is present in a case against the California Fair Political Practices Commission called ProtectMarriage.com v. Bowen. I am a commissioner and technically a defendant in that lawsuit. Needless to say, I only express my personal view. In both the gay marriage case and Bowen, the contributions go to a cause, an issue, not to a candidate. Courts are concerned when disclosure will lead to harassment of the contributors.
In Bowen, the plaintiffs are two committees that supported Proposition 8 – a ballot measure that bans gay marriage. The issue in Bowen relates to free speech, not gay marriage. California law requires these committees to disclose the names of individuals who donated $100 or more to support Proposition 8, and also their street address, occupation and name of employer. The committees resist disclosure because their donors have said they will not contribute in the future because of the harassment they have already received because of prior disclosures.
People have a constitutional right to support (or oppose) Proposition 8. Yet some have urged their followers (as one Web page put it) to “take action against those who want to deny us our equal rights,” and “fight back.” Sadly, some people have taken this request literally. Donors who already have been disclosed have suffered threatening phone calls and e-mails, sometimes accompanied by death threats. These death threats are even more intimidating because of the compelled disclosure of the donors’ street addresses.
Donors have seen their pro-Proposition 8 signs stolen, windows broken and property vandalized with spray paint, cars keyed. Employers who did not contribute to Proposition 8 have been blacklisted because their employees contributed. In some cases, employees have been forced to resign their jobs.
One threat said a minister “will be meeting his maker sooner than expected.” As for his congregation, “If you thought 9/11 was bad, you haven’t seen anything yet.” Two Mormon temples and a Knights of Columbus facility received envelopes containing a white powdery substance. A Mormon church found adhesive poured on its doormat and keypad.
Buckley v. Valeo (1976), the granddaddy of all modern campaign disclosure laws, warns that compelled disclosure can seriously infringe upon First Amendment rights of belief, privacy and association. The government must not require disclosure if the parties “show only a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.”
In 1982, the Supreme Court said it was unconstitutional for Ohio to mandate disclosure of donors to the Socialist Workers Party, because the organization presented evidence of threatening phone calls, hate mail and harassment. The state requires disclosure to prohibit corruption, but the appearance of corruption “simply is not present in a popular vote on a public issue,” the court states in a 1978 case, First National Bank v. Bellotti. Campaign contributions may buy special access to a politician, but no contribution gives anyone special access to Proposition 8.
In late January, in Citizens United v. Federal Election Commission, the court says that corporations have a First Amendment right to distribute a movie highly critical of Hillary Rodham Clinton. The court then adds an important caveat. Compelled disclosure “would be unconstitutional as applied to an organization if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.”
And that brings us back to the San Francisco judge who wants to televise his trial on gay marriage. The Supreme Court overturned his change in the court rules. Many commentators presented this case as a trial judge not following the correct procedures in changing court rules. But the Supreme Court did more than that. It referred to news reports of threats and harassment faced by those who have publicly opposed gay marriage. That is the same argument that the defendants raise in their opposition to compelled disclosure of donations to support Proposition 8.
If government-compelled disclosure results in private parties harassing those who have a different view of gay marriage, then the First Amendment steps in. It prevents the government from aiding those who disagree in a most disagreeable way.