A Suit on Behalf of Fundamental Rights

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Try to get your head around the principles behind campaign finance laws as they’re currently written, and you’ll find a muddled mess of political convenience.

At the start, it’s easy to understand why the electorate might want to know who is donating to candidates for their campaigns.  Candidates become officials who make decisions, and knowing who helped them get into office might help voters understand why they make the decisions that they make.

But a ballot question doesn’t make any decisions.  People vote on a bond or referendum based on their own assessment of whether it is a good idea, and voters implicitly know what went into their decisions.  Yet, Rhode Island law goes so far as to require not only identification of who is making arguments, but also of the top donors to organizations making those arguments.  When Rhode Island legislators passed the laws concerning ballot questions, John Marion of Common Cause argued that it can help voters make up their minds if they know who is funding the arguments they hear.

That may be the case (or it may not), but an interest in gathering information for voters doesn’t cancel out other people’s rights.  Indeed, the U.S. Supreme Court, in McIntyre v. Ohio Elections Commissionand the U.S. District Court of Rhode Island, in John Blakeslee v. The Attorney General, have held that the First Amendment protects completely anonymous political speech.  As the Supreme Court wrote:

… The claimed informational interest is plainly insufficient to support the statute’s disclosure requirement, since the speaker’s identity is no different from other components of a document’s contents that the author is free to include or exclude, and the author’s name and address add little to the reader’s ability to evaluate the document in the case of a handbill written by a private citizen unknown to the reader.

If anonymous speech is protected, we should encourage more disclosure, not less.  In other words, if a person or organization wants to put his, her, or its name on a publication, that is additional information for the reader.  We should want that, and not pile on the added disincentive of requiring that donors be exposed?  One strongly suspects that the intention of this law is exactly that: to expose donors to intimidation by people who do not like the speech they fund.

This is why the RI Center for Freedom & Prosperity has joined with the Liberty Justice Center “to bring a lawsuit against an unconstitutional donor disclosure law in the Ocean State.”  Those of us involved in the Rhode Island insurgency hear again and again from people who have experienced or fear retaliation for going against the powerful establishment in our state.  In this, they are like members of the NAACP, who the U.S. Supreme Court ruled in 1958 had a right to anonymity.  From NAACP v. Alabama:

Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment. … In the circumstances of this case, compelled disclosure of petitioner’s membership lists is likely to constitute an effective restraint on its members’ freedom of association.

In a Providence Journal article about the lawsuit, John Marion quotes the late Supreme Court Justice Antonin Scalia, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”  But the case in which Scalia wrote that sentence, Doe v. Reedwas about the anonymity people who signed a petition that put a law on the ballot for public vote.  That means signing the petition was itself a political act that had direct democratic power to affect an outcome.

So, what guiding principle ought to apply to these policies?  To start with, people have a right to information about the people making public decisions.  In the case of elected officials, that means information about who might have purchased a favorable impression by funding a campaign, and in the case of petitions, that means knowing who performed the act that actually put the referendum on the ballot.

Scalia was right that, in the latter case, our society must “foster[] civic courage,” but courage isn’t the only civic virtue.  We also must foster civic responsibility.  Voters are responsible for judging the information that they apply to their own public act of voting.  They are not owed aggregated information from their fellow citizens.  The vote is their public act — the action that has a direct and immediate effect on the operation of government.

Speech is not a public act in that sense.  Speech, itself, has no inherent authority to affect the actions of government; it must be put into effect by voters or by government officials.  That is the point at which the public has some claim to information.  Perhaps we could require them to make some presentation of the arguments that they find persuasive, just as we require elected officials to present who gave them money, but that does not extend to a right to investigate the donors, much less independent speakers.  If we do not even require voters to state publicly how they voted, for fear of intimidation, what claim do we have to compel disclosure from people who might (or might not) have influenced those decisions?

When that influence is accomplished through speech, it is an inherent right and cannot be conditioned on our willingness to answer every question a listener might have about the reasons for our speech.  As the McIntyre decision illustrates, it cannot even be conditioned on our willingness to put a name to our speech.

For these reasons, Rhode Island’s representatives should have rejected this attempt to invade the privacy of people participating in political discourse in the Ocean State.  Because those government officials promoted the invasion of privacy, rather than rejecting it, the courts should step in and protect our rights.



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