Dark Money Could Get Even Darker

The story of dark money could get a new chapter from the Supreme Court this term in ProtectMarriage.com v. Bowen. This case has been bouncing around the courts since 2009 and arises out of facts surrounding the 2008 election in California.

ProtectMarriage was one of the primary proponents of the anti-gay Prop. 8, which defined marriage as being between one man and one woman in the California Constitution. The group has tried unsuccessfully to keep the names of its donors private in the lower courts arguing that they deserve a harassment exemption.

The district court found that ProtectMarriage did not have a right to remain anonymous in light of the Supreme Court’s rulings in Buckley v. Valeo, Citizens United and Doe v. Reed, which upheld transparency in elections. On appeal ProtectMarriage nonetheless continued to ask for anonymity. The appeals court found that the case was moot because the disclosures had already been made and thus the appeals court could not restore the group’s privacy in light of on-line disclosures and disclosures to numerous third parties.

This is an interesting case because some Supreme Court justices have already tipped their hand on their view of ProtectMarriage’s victimhood in another case called Hollingsworth v. Perry, 130 S.Ct. 705 (2010). Hollingsworth is the case from California about Prop 8’s constitutionality under the Equal Protection Clause.

However, this part of the Hollingsworth case from 2010 was about the collateral issue of whether the Prop 8. trial could be televised. The Supreme Court said that it could not because of how the 9^th Circuit had improperly changed its rules about televising court hearings. But the justices in an unsigned per curiam opinion went out of their way to say that the Prop. 8 trial would be a particularly poor choice for broadcast because it involved people who had already been subject to alleged harassment.

Over the dissent of justices Sotomayor, Breyer, Stevens and Ginsburg, as the majority of Court noted in Hollingsworth in 2010, “Proposition 8 …advocates claim that they have been subject to harassment … donors to groups supporting Proposition 8 ‘have received death threats and envelopes containing a powdery white substance.’ … And numerous instances of vandalism and physical violence have been reported ….” ProtectMarriage was one of those groups the justices alluded to here.

In their pending petition for certiorari, ProtectMarriage argues that the lower court is wrong about mootness and furthermore “seek[s] exemption from “[California’s] ‘compelled disclosure requirements’, i.e., protection of their First Amendment right not to publicly disclose identifying information about committee officers, contributors, expenditure recipients, and Major Donors, for whom there was, and remains, a reasonable probability of threats, harassment, or reprisals.” In other words, ProtectMarriage is seeking a total exemption from otherwise generally applicable campaign finance disclosure laws in California.

The trial judge in the ProtectMarriage case noted: “Plaintiffs’ exemption argument appears to be premised, in large part, on the concept that individuals should be free from even legal consequences of their speech. That is simply not the nature of their right.” And the trial judge was mindful that illegal harassment can and should be prosecuted criminally. As the judge wrote, “the Court strongly condemns the behavior of those who resort to violence, and/or other illegal behavior…Those responsible for threatening the lives of supporters of Proposition 8 are subject to criminal liability. …In each case, there are appropriate legal channels through which to rectify and deter the reoccurrence of such reprehensible behavior.” Consequently, the trial judge refused to grant ProtectMarriage a harassment exemption from California’s campaign finance disclosure laws.

If they take the ProtectMarriage case, the Justices may take the opportunity to expand a narrow harassment exemption to campaign finance disclosure, which has been enjoyed only by those who can demonstrate a threat of harassment. Historically, this exemption was reserved for rare instances of despised and politically unpopular minorities like the Socialist Workers Party. But here the Court could do something radical like giving a harassment exemption to a political group that won a majority vote in an expensive California referendum.

The trial judge noted what would be at stake if what ProtectMarriage won was the loss of transparency for California voters: “Of particular relevance in this case is the number of out-of-state individuals and corporations contributing to the passage of a California referendum. Surely California voters are entitled to information as to whether it is even citizens of their own republic who are supporting or opposing a California ballot measure.” Now the ball is in the justices’ court.