THE DISCLOSURE OF IDENTITY CONTROVERSY – PART I

The controversy surrounding first amendment rights associated with initiatives and referendums in Washington took a new and potentially significant turn Thursday when a group called Pacer Family PAC sued in federal court to enjoin the State from enforcing its Public Disclosure law that requires the disclosure of campaign contributors identities and limits the amount of contributions to initiative and referendum campaigns within 21 days of the election.   (This potential was duly identified in my  first LawNerd post about the Referendum 71 signature litigation.)

Pacer Family PAC wants to throw big money at the No on Referendum 71 Campaign.  They are raising the same type of claims raised by Protect Marriage Washington in its lawsuit about the anonymity of Referendum 71 signatories but with a twist.  (Pacer Family PAC is being represented by the same law firm that represents Protect Marriage Washington, an Indiana based firm know for representing socially conservative advocacy groups around the Country.)

Here, Pacer Family PAC is arguing that the existence of the internet makes the disclosure of identity a much greater intrusion on privacy than the same disclosure requirements that existed before the omnipresence of the internet.  The premise is undoubtedly true:  The internet makes public information greatly more available. Thus, where campaign disclosure reports originally could only be accessed by individuals actually going down to the Public Disclosure Commission to look at records or seeking such records by mail, they can now be accessed electronically by anyone with internet access.  But there is an underlying flaw in this argument.  If it was a public good for campaign contributors’ identities to be disclosed before, why is that public good not enhanced by allowing more people to access that information. It is almost perverse to say that public disclosure was good with only a privileged few had access to the information, but is bad when most of us citizens now have access to that same information.

This issue here is how large a donation is enough to invoke the State’s interest in promoting clean and transparent elections and candidates. Currently, the State requires the disclosure of the identities of those donating $25 or more and the identity and employer of those donating $100 or more. I think Pacer Family faces an uphill battle on anonymity.  The State’s interests in requiring identity disclosure are clearer here, there is no record or claim or actual harassment, and the limit reflects a judgment of the people of the State that disclosure is appropriate for very small donations.  When the Public Disclosure Law was enacted by initiative with an overwhelming 72 percent  of the vote in 1972, the limit for disclosure of identity was a $10 contribution.

The other side of the litigation—the limit on large donations 21 days before an election—is a bit more interesting especially in light of the U.S. Supreme Court’s recent signals that it may be inclined to undo precedent and strike down some existing campaign finance restrictions that have previously been upheld. But the time limit is not arbitrary—it relates to when ballots are mailed out and reflects the notion that one side of an issue should not be able to dump last minute money into an election while people are voting.  At stake is the transparency of the electoral process.

The suit was filed in Tacoma perhaps with the hope of being assigned to Judge Settle who decided in favor of Protect Marriage Washington.  They did not draw Judge Settle.  Instead, the case was assigned to Judge Richard Leighton, another George W Bush appointee, who two years ago issued an injunction against a State health regulation that required pharmacies in Washington to dispense all prescribed medication, including the Plan B contraceptive.  That injunction was later overturned by the Ninth Circuit Court of Appeals.

PART II

With regard to the release of the identities of Referendum 71 petition signers, only one thing is certain:  The State of Washington will not be releasing the names and addresses of initiative and referendum signers for several months while the U.S. Supreme Court decides whether to review the case Protect Marriage Washington brought against the State over release of signers names and addresses. The case started in U.S. District Court in Tacoma where, in a questionable decision, Judge Settle issued a preliminary injunction in favor of Protect Marriage Washington (see my prior post regarding the problems with the decision).

The Ninth Circuit Court of Appeals decided quickly to hear an appeal.  The day after the hearing on the appeal, the Court issued an Order lifting the injunction. But the Order was vague on rationale: The Ninth Circuit only noted that Judge Settle had used the wrong standard and that a full decision would be forthcoming.  Protect Marriage Washington immediately requested an emergency stay of the Ninth Circuit Order to Supreme Court Justice Anthony Kennedy, the Justice assigned to the Ninth Circuit for such requests.  Justice Kennedy issued the stay and a few days later the U.S. Supreme Court determined to continue the stay (preventing release of the names and addresses) until the parties had briefed and the Supreme Court had decided whether to accept review.

You should not read too much into the Supreme Court’s decision:  it is unquestionably true that the release of the names and addresses pending final determination by the Supreme Court whether to take review would ring a bell that could not be later un-rung—preserving the status quo being a common rationale for obtaining a stay. Moreover, since the Ninth Circuit had not yet issued a substantive opinion, the stay cannot be seen as too critical of the Ninth Circuit.  But the Supreme Court’s action was unusual and at a minimum reflects an interest in the issues raised by the case.

The Ninth Circuit issued its opinion yesterday.  As argued here, the Ninth Circuit found that the signing of a referendum petition was not anonymous speech.  Therefore the District Court had applied the wrong standard.  The Ninth Circuit further found that the public records act was content neutral—it did not favor any particular viewpoint—and therefore was subject to a lesser degree of constitutional scrutiny than if the law discriminated based on content or regulated anonymous speech.  In that light, the State’s interests were more than sufficient to justify the disclosure requirements.

I believe that at the end of the day, the Supreme Court will not decide to review the case especially because the record of actual threat and harassment is so bare and the issue is one of first impression (typically the Supreme Court does not intercede until two or more Circuit Courts of Appeals have issued contrary decisions on an issue).  Moreover, I think the Ninth Circuit was right that this was not anonymous speech.

And finally, Washington’s good neighbor Tim Eyman has stepped into the mess.  He has sued the State in state court – Thurston County – to prevent the release of names and addresses of signors of his initiative petitions. The suit follows a public records request for the release of the Eyman petitions.  So far, the State Court Judge Richard Hicks, has been trying to follow the lead of the federal court decisions in the Protect Marriage Washington litigation.  Eyman’s lawsuit, however, goes a bit further that Protect Marriage Washington trying to get a declaration that the State’s public records law is unconstitutional as applied to the release of petitions for controversial initiatives and referendums.  Protect Marriage Washington only argues that its particular supporters are subject to harassment so the public records law is unconstitutional only as applied to them.

I know Erica caught City Council candidate David Bloom suggesting Tim Eyman’s appendage should be the first thing cut if I-1033 passes, but Tim, really, do your supporters actually feel threatened by harassment from the teachers, seniors, firefighters, and police officers that will be harmed if your initiative passes?