Anonymity fight not over
In the run-up to this week’s election, there was considerable discussion about the lawsuit filed by Protect Marriage Washington (PMW) to maintain the anonymity of those who signed the petitions to place Referendum 71 – the referendum on Washington’s domestic partnership law – on the ballot. A related issue that received far less attention was the committee’s attempt to keep the identities of its financial donors confidential.
Washington law forces political committees, like PMW, to disclose the names and addresses of all donors who contribute more than $25. Committees must also disclose the occupation and employer of every donor who contributes more than $100. The state collects this information and posts it to a government-maintained database accessible by anyone with an Internet connection.
In light of the harassment experienced by same-sex marriage opponents during California’s Proposition 8 campaign, PMW and Family PAC, another committee that opposed Washington’s domestic partnership law, asked a federal court to protect the anonymity of their donors. Their argument was simple: The U.S. Constitution protects the right to engage in political speech and association, even anonymously.
Domestic partnership supporters – including the state’s gay and lesbian community – insisted that PMW’s and Family PAC’s donors be revealed. In other words, proponents of domestic partnership rights were willing to sacrifice the constitutional right to engage in anonymous speech and association simply because their opponents were seeking its protections. But the right to engage in anonymous political activity protects all Americans, whether we agree or disagree with their political viewpoint.
It is unfortunate that gays and lesbians, historical targets for abuse by the majority, were so quick to disavow the right of anonymity in the debate over Referendum 71. Washington’s disclosure law, after all, could just as easily have chilled the political expression of domestic partnership supporters. A closeted lesbian in a conservative town, for example, would have been understandably reluctant to contribute to a pro-domestic partnership committee, knowing that her name, address and employer would be published online for the whole town to see. And given the “Don’t Ask, Don’t Tell” policy, a gay member of the armed forces might well have thought twice about contributing, knowing that his support would be recorded in a government-maintained database.
It was to prevent such chilling of political participation that the framers of the Constitution protected the right to engage in anonymous political speech and association. In fact, the framers availed themselves of this right: James Madison, Alexander Hamilton and John Jay published the Federalist Papers under the pseudonym “Publius.”
Throughout our nation’s history, the Supreme Court has affirmed the importance of the right to speak and associate anonymously. In 1956, for example, Alabama tried to force the NAACP to disclose the names and addresses of its members. Alabama hoped that if the NAACP were forced to disclose its membership, the organization’s work for equal rights would be thwarted.
Fortunately, the Supreme Court refused. In a unanimous opinion, the court held that “freedom to engage in association for the advancement of beliefs and ideas” – whether “political, economic, religious or cultural” – “is an inseparable aspect of the ‘liberty’ assured by” the Constitution. “[P]rivacy in group association,” the court added, is often “indispensable …, particularly where a group espouses dissident beliefs.”
On a few occasions, the Supreme Court has allowed the government to overcome the right of anonymous political speech and association. Because of the possibility of corruption, for example, the court has upheld laws requiring disclosure of contributions to candidates for political office.
But the anti-corruption rationale has no basis in campaigns concerning ballot measures such as Referendum 71. When we vote on a ballot measure, we vote on an issue, not a candidate. With no candidate, there is no one to corrupt and, therefore, no justification for disclosure. When emotions run high over a ballot measure, as they did with Referendum 71, it can be difficult to separate the substance of the measure from the right of citizens to speak and associate anonymously regarding it. But that right has served our republic well; it has been instrumental in enabling minority groups, including gays and lesbians, to effectively advance their causes.
So although the vote on Referendum 71 is now over, the legal challenges to Washington’s disclosure requirements continue. Those who supported the domestic partnership law at the polls ought to hope that the right of anonymous speech and association prevails at the end of the day. After all, every American should be free to participate in the political process without fear of harassment or retribution.
Michael Bindas is a staff attorney with the Institute for Justice’s Washington Chapter, headquartered in Seattle.