April 06, 2010
My new Slate Jurisprudence column begins:
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