Doe v. Reed Oral Argument Wrap Up: Is Anonymity in Politics a Constitutional Right?

by David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center

In a January ruling opposed by a majority of Americans across the political spectrum, the Supreme Court in Citizens United v FEC opened up the floodgates to unlimited corporate spending on elections, while holding out the promise that corporations would be required to disclose any money they spent trying to elect candidates to do their bidding.   Since then, we’ve seen a spate of efforts by corporations and conservative activists to get around the law’s basic disclosure obligation.  Citizens United itself, having lost its constitutional challenge to disclosure (a less publicized part of the Court’s ruling), has argued to the FEC that it is really part of the media and should be exempt from all disclosure obligations on that basis.  The Committee for Truth in Politics — an organization represented by longtime campaign finance foe Jim Bopp that spent millions of dollars on attack ads opposing Barack Obama’s campaign for President and is now spending millions to oppose his proposals to regulate the financial industry — has refused to disclose where exactly its money comes from.  And these examples are just the tip of the iceberg.

Yesterday, in oral argument before the Supreme Court, Jim Bopp, on behalf of other clients, asked the Justices to create a new First Amendment right to anonymity in the political process, with Bopp apparently hoping to lay the groundwork for a future challenge to Citizen United’s holding on disclosure.  The case, Doe v. Reed, involves a constitutional challenge to Washington State’s Public Records Act.  Representing individuals who had signed a petition to put a referendum on the general election ballot to strip gay men and lesbians of rights conferred by Washington’s domestic partnership statute, Bopp argued that the names of persons who signed the petition were constitutionally exempt from disclosure, even though petitions are obviously public records.

If Bopp had hoped that the conservatives on the Court would unite to vindicate a First Amendment right of anonymity, the questioning during oral argument suggested otherwise.  Justice Scalia immediately pounced on Bopp’s argument, asking Bopp to square his argument with the Court’s precedents, including Citizens United, that require disclosure of money spent on politics.  Justice Scalia all but called Bopp’s argument baseless, pointing out that part of participating in a democracy means “be[ing] responsible for the positions you have taken.” Justice Kennedy, too, joined in, noting that the public has an interest in knowing who exactly is behind a proposed referendum, whether it be unions or the Chamber of Commerce.  Justice Stevens, participating in his last oral argument as a Justice, made the point that disclosure promotes democracy and robust debate – if the names of those who sign petitions must be disclosed, opponents of the ballot proposal have the opportunity to persuade them to change their minds.  When all was said and done, it appeared that a fairly substantial majority of the Court has little appetite to fashion a new expansive First Amendment right of anonymity in politics.

With disclosure at the center of upcoming battles over the newly-minted constitutional right of corporations to spend money on elections, we should all be watching carefully to see how the Justices respond to Bopp’s plea for sweeping constitutional protection for anonymity in politics.