January 13, 2010

The Surprising Citizens United-Prop. 8 Case Connection at the Supreme Court

While we were all (wrongly!) guessing that the Supreme Court had been busy putting the finishing touches on the Citizens United opinion, the Court was actually busy putting the finishing touches on something else, a 5-4 unusual order barring the televising of the Prop. 8 trial pending further order of the Court. As Lyle explains, this order essentially will bar any real-time release of the trial video.

Though it is possible that work on Hollingsworth v. Perry (as the Supreme Court Prop. 8 order is known) put the Court a bit behind on finishing Citizens United, that's not the surprising connection I see between the cases. Nor is it that Ted Olson is involved in both cases (though on opposite, if not orthogonal, sides). It is this: both cases feature arguments by conservatives that they will face harassment for expressing their views publicly.

The Prop. 8 harassment issue is of course well known to the general public; but the same issue appears in the part of the Citizens United case that has gotten much less attention than the question of the Court possibly gutting corporate spending limits in candidate elections. Citizens United also asks for a breathtakingly broad exemption from generally applicable disclosure rules. If the argument is accepted, the public would not be able to tell who was spending what in most elections.

I had always assumed that CU's disclosure argument was going nowhere, particularly if the Court majority was poised to strike down the corporate spending limits. One can imagine the Chief Justice pointing to disclosure as the more narrowly tailored alternative to the possibility of corruption, and trumpeting full disclosure as adequate campaign finance reform.

Now I'm not so sure, as I believe the conservatives on the Court could be buying a bit more into the harassment argument. Check out this passage from the beginning of Part I of the Prop. 8 per curiam opinion, and note the Court relying on briefs in the Citizens United case (when's the last time the Court has cited briefs in a pending case like this?):

    Proposition 8 was passed by California voters in November 2008. It was a ballot proposition designed to overturn a ruling by the California Supreme Court that had given same-sex couples a right to marry. Proposition 8 was and is the subject of public debate throughout the State and, indeed, nationwide. Its advocates claim that they have been subject to harassment as a result of public disclosure of their support. See, e.g., Reply Brief for Appellant 28-29 in Citizens United v. Federal Election Comm'n, No. 08-205, now pending before this Court. For example, donors to groups supporting Proposition 8 "have received death threats and envelopes containing a powdery white substance." Stone, Prop 8 Donor Web Site Shows Disclosure is a 2-Edged Sword, N. Y. Times, Feb. 8, 2009. Some advocates claim that they have received confrontational phone calls and e-mail messages from opponents of Proposition 8, ibid., and others have been forced to resign their jobs after it became public that they had donated to groups supporting the amendment, see Brief for Center for Competitive Politics as Amicus Curiae 13-14, in Citizens United v. Federal Election Comm'n, No. 08-205, now pending before this Court. Opponents of Proposition 8 also are alleged to have compiled "Internet blacklists" of pro-Proposition 8 businesses and urged others to boycott those businesses in retaliation for sup-porting the ballot measure

(My emphases.)
My view on the harassment question: If harassment turns out to be a real problem, there's a more narrowly tailored solution than gutting disclosure laws: grant as-applied exemptions for those persons who can demonstrate a real (not imagined) threat of harassment.
But if a Court majority accepted CU's broad disclosure arguments in addition to their corporate spending arguments, the case turn out much worse than even reformers have dreaded.

Posted by Rick Hasen at January 13, 2010 04:58 PM