"Hushed Money"

My new Slate Jurisprudence column begins:

If you thought things have gotten bad with campaign financing since the Supreme Court turned on the corporate money spigot in the Citizens United case, you ain't seen nothing yet. Opponents of reasonable regulation have a new target: trying to keep the flow of campaign money secret. We may soon be going retro, back to the pre-Watergate era of secret campaign cash.

It concludes:

But there's reason to worry that the court could weaken its endorsement of disclosure in Citizens United. Later this month, the justices will hear Doe v. Reed, a case challenging disclosure of the names of people who signed a petition seeking to repeal by referendum a pro-civil-union gay rights measure passed by the Washington state legislature. The Supreme Court has long recognized an exemption from disclosure laws for donors who face legitimate threats of harassment for their campaign contributions. In Brown v. Socialist Workers '74 Campaign Committee, the court allowed such an exemption for contributors to the Socialist Workers Party, following proof of "threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members' property, police harassment of a party candidate, and the firing of shots at an SWP office."

In the Doe case, the signers of the measure are trying to extend this shield of anonymity, claiming that a fear of harassment is enough. It turns out that in this case, the fear is totally unsubstantiated. In an amicus brief, a group of political scientists say that they have not found a single reported threat to the signer of a ballot measure petition in any state in the last 100 years. In a similar case involving alleged threats to the campaign for California's anti-gay marriage referendum, Proposition 8, the trial judge found little evidence of actual harassment to support withholding the names of contributors.

But just because the fear is unproven doesn't mean that five Supreme Court justices might not believe in it. As Emily Bazelon explained in January, the Supreme Court blocked the televising of the same-sex marriage trial concerning the constitutionality of Proposition 8 based on similarly unsubstantiated fears that witnesses at the trial could face harassment. Extending the harassment exemption without actual evidence is a way to undermine disclosure laws without saying so. And appealing to conservative justices' sense of being under siege seems like a reasonable strategy to get there these days. It all shows that full campaign finance deregulation is on the march.

Posted by Rick Hasen at April 6, 2010 08:27 AM