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Disclosure of Contributors to Ballot Measures:

The Ninth Circuit has upheld California laws that mandate the disclosure of contributions to ballot measure campaigns (see here and here). But Buckley v. Valeo (1976) and Brown v. Socialist Workers' 74 Campaign Committee (1982) held that "the First Amendment prohibits the government from compelling disclosures [of campaign contributions] by a minor political party that can show a 'reasonable probability' that the compelled disclosures will subject those identified to 'threats, harassment, or reprisals.'"

Presumptively, the same rule should apply as to compelled disclosures of contributions to ballot measure committees -- but does it apply even when the ballot measure may well win (as opposed to a "minor political party," which is nearly sure to lose)?

Relatedly, just how much of a showing of "harassment" and "reprisals" would opponents of same-sex-marriage have to show in order to justify such an exemption? I take it that the theater boycott incident I mention below wouldn't by itself suffice, nor would it if it's coupled with the hotel boycott we blogged about a few months ago. But, given Brown, how many such incidents -- or what types of incidents -- would be required? Does there have to be evidence of violence, police abuse, or firings by employers? Or would evidence of public boycotts of the contributor's business, or the contributor's employer, qualify?

darelf:
Would verbal death threats suffice? Such as a boycotter hypothetically saying that people on such a committee should be killed, "burned at stake", hanged, etc.?

Or are these just rhetorical devices that shouldn't fall under such rules?
11.13.2008 3:56pm
Simon P:
Given that public boycotts are not illegal, but violence, police abuse, and termination premised upon political activity are (see your last post), why isn't the line here fairly clear?
11.13.2008 4:38pm
ForWHatItIsWorth:
"....The Ninth Circuit has upheld California laws that mandate the disclosure of contributions to ballot measure campaigns..."

Disclosure to whom would be a good question. I am all for checking to ensure that campaign contributions and/or any other politically motivated (ballot measures) are legal and according to the rules that apply.

I am not in favor of disclosure to anyone who is not checking for same, under ANY circumstance. Public disclosure of my political leanings would have the impact of restricting my right to free speech (anonymous in particular).

Additionally, does it not "tip the hand" when it comes to secret ballot? After all, if I am contributing and am publicly disclosed, has not my "vote" just been made public? Certainly I am not going to contribute to one side and vote another. A contribution should, within the stipulations I made above, be as secret as your ballot.

Personally, I would think California's law to be the issue, not boycotts, etc. No?
11.13.2008 4:42pm
Thorley Winston (mail) (www):
I am not in favor of disclosure to anyone who is not checking for same, under ANY circumstance. Public disclosure of my political leanings would have the impact of restricting my right to free speech (anonymous in particular).


I understand what you mean, however I have found mandatory disclosure of campaign contributions to be useful information in (a) I've been able to look up the contributions of my professors and the authors of my law books to get an idea of any potential bias (and actually busted a couple in class), (b) it helps keep people honest who profess to be "objective" or "nonpartisan" when they author letters to the editor but donate thousands of dollars to a particular party, (c) looking up the contributions of members of boards of "non-partisan" organizations and seeing if they tilt heavily in one direction or the other can provide a useful insight into their true leanings and (d) it's a useful shorthand for those of us prefer one party over the other in voting for or against non-partisan office holders when we don't have any other practical information about the candidate.

That being said, if we are going to require that candidates disclose the source of their campaign contributions, I don't agree with exempting either ballot initiatives or minor parties from the same requirements. It seems to me that the same public interest in disclosure would apply.
11.13.2008 4:56pm
Eugene Volokh (www):
Simon P: It might make sense to exempt contributions from disclosure only when supporters of the cause have been targeted for illegal behavior.

But Brown didn't limit its list of harassing/retaliatory incidents to such behavior, but also included "evidence that in the 12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party membership," which "amply support[ed] the District Court's conclusion that 'private hostility and harassment toward SWP members make it difficult for them to maintain employment.'" Nothing in the opinion suggests that such firings were illegal; even today, in most states (including, I believe, Ohio) it's not illegal for employers to fire people based on their political activity. So it's hard to see the illegal retaliation vs. legal retaliation line as being consistent with Brown.
11.13.2008 4:59pm
PatHMV (mail) (www):
Why do people care so much who is funding such things? Why should the law require any disclosure at all?
11.13.2008 5:01pm
truthteller (mail):
When they take your rights away...You care!
11.13.2008 5:10pm
DiverDan (mail):
Frankly, I think that the probability of harrasment &retailiation has already been shown with respect to California's Proposition 8 -- We've already seen picketing at the LDS Church, and threats of marches on Black Churches which supported Prop 8. I think Brown mandates protecting the confidentiality of any person or group that supported Prop 8. If the 9th Circuit ruled otherwise, it's just another example of a ruling clearly contrary to Supreme Court precedent.
11.13.2008 5:15pm
James Gibson (mail):
PatHMV- Why do people care so much who is funding such things? Why should the law require any disclosure at all?

Because people can't stand a secret ballot and want to know who their enemies are. Thats why the card check bill is being pushed, to require the outting of people who did not support the union leaderships side of a vote. Its also why, on any issue, you will find full listings of donors to a cause that a newspaper stands against, while the supporters of the newspapers side are kept anonymous.
11.13.2008 5:16pm
Randy R. (mail):
You will also recall that Republicans made a lot of noise about Obama raising money from outside the US, and we were supposed to infer that that is somehow bad.

DiverDan: "We've already seen picketing at the LDS Church, and threats of marches on Black Churches which supported Prop 8. "

Omigod! Picketing? Marching? Soon these uppity gays are going to have the temerity to *write letters* and *start blogging*! How will the republic stand after all this! They were beat, and they should just go home and bake a cake.
11.13.2008 5:21pm
Alligator:
My memory may be flawed, but I thought that Buckley upheld disclosure of contributions to candidates because preventing corruption or the appearance of corruption justified any burden on First Amendment rights (absent threat of harassment, etc.). The Court has rejected restrictions on corporations that wish to support or oppose a ballot measure because there is no candidate to corrupt.

I don't think that threats of violence are enough to strike down disclosure requirement here because we already have laws addressing such conduct, but what state interest would justifying disclosure requirements on ballot measures?
11.13.2008 5:23pm
Smokey:
The post directly below this one shows why individual donations should be as confidential as secret ballots:
Boycott Threats Lead to Resignation of Theater Artistic Director Who Contributed to Anti-Same-Sex-Marriage Initiative
How would you like losing your livelihood simply because you cast your vote a particular way?
11.13.2008 5:38pm
Eugene Volokh (www):
Alligator: Check out the Ninth Circuit opinions I linked to, which discuss the question (though I don't vouch for their correctness).
11.13.2008 5:40pm
one of many:
I think you're headed down the wrong track here EV, not minor parties from Buckley but independent (of candidates) expenditures not being subject to disclosure (also can be found in Buckley). The purpose of disclosure, after all, is to prevent corruption of officials by "buying" them, where no official is linked to the contribution and can be corrupted by it there is no public purpose in disclosure. My understanding of California law covering ballot measures campaigns is that it already distinguishes ballot measure campaigns which are closely tied to an officeholder or candidate for office and those which are not, the former is subject to limitations as to how much can be contributed while the later is not subject to limitation.
11.13.2008 5:45pm
Randy R. (mail):
Smokey: "How would you like losing your livelihood simply because you cast your vote a particular way?"

yeah, it sucks. I'm sure you were just as upset when the Mormon church threatened to hold accountable anyone they found supporting our side, right?
11.13.2008 5:47pm
New Pseudonym:
Randy, the violence against counter protesters has already begun, so don't feign shock.

rel="nofollow" href="http://www.lifesitenews.com/ldn/2008/nov/08111010.html
11.13.2008 5:48pm
markH (mail):

Smokey: "How would you like losing your livelihood simply because you cast your vote a particular way?"


We don't know how he voted. We know that he contributed money to help convince other people to vote yes on Proposition 8. The other subjects of protest/boycotts have been targeted for the same reason.
11.13.2008 6:05pm
Adam J:
Smokey- "How would you like losing your livelihood simply because you cast your vote a particular way?" Um, his vote was completely anonymous, like everyone elses. Surely you don't think political contributions should be done in back rooms with no oversight?
11.13.2008 6:05pm
Spoilt Victorian Child (mail):
You will also recall that Republicans made a lot of noise about Obama raising money from outside the US, and we were supposed to infer that that is somehow bad.

I think that's a bad example, since it's actually illegal.
11.13.2008 6:06pm
MatrixArchitect:

You will also recall that Republicans made a lot of noise about Obama raising money from outside the US, and we were supposed to infer that that is somehow bad.

Randy,

You're supposed to infer something bad about that b/c its against the law.
11.13.2008 6:06pm
Dilan Esper (mail) (www):
I am sympathetic to the point Professor Volokh is making. Indeed, if you flip it around, you can really see it-- imagine if a closeted gay got "outed", in part, through a pattern of political contributions to gay rights causes.

The only issue is what Professor Volokh asks, which is where does one draw the line?
11.13.2008 6:11pm
Randy R. (mail):
New Psuedonym: "Randy, the violence against counter protesters has already begun, so don't feign shock."

I watched the video in question, and it showed a woman being interviewed by a reporter and she was shouted down by protestors. There was no violence, and in fact the woman was smiling throughout the entire time. She was not attacked, although people told her to 'go home.'

If that's the worst violence that you can come up with, then we are pretty good shape, don't you agree?

Sorry to pop your propaganda...
11.13.2008 6:14pm
Oren:
This is starting to get really embarrassing.
11.13.2008 6:14pm
Randy R. (mail):
"I think that's a bad example, since it's actually illegal."

You're right! All the more reason to know who is donating, don't you agree?
11.13.2008 6:15pm
CCD:
Seems to me this would be a very different discussion if the people being harassed were a different kind of minority and those doing the harassing belonged to a different kind of bullying group.

It's like living in the bizarro 1960s.
11.13.2008 6:20pm
KeithK (mail):

You will also recall that Republicans made a lot of noise about Obama raising money from outside the US, and we were supposed to infer that that is somehow bad.


It is relevant if a candidate is receiving contributions from foreign sources because that is (I believe) illegal under US law. Further the reason I want to see disclosure for contributions to candidates is that I want to know to whom a candidate might be beholden after election. This isn't "hating secret ballots". A candidate doesn't know if you voted for him or not so there's no possible quid pro quo.

Ballot propositions are different because there's not a person to potentially give favors after the question is decided.
11.13.2008 6:25pm
Malvolio:
I watched the video in question, and it showed a woman being interviewed by a reporter and she was shouted down by protestors. There was no violence, and in fact the woman was smiling throughout the entire time.
Yeah, she was probably hoping someone would desecrate her crucifix.
If that's the worst violence that you can come up with, then we are pretty good shape, don't you agree?
To paraphrase Homer Simpson, that's the worst violence that we can come up with, so far.

Given the lack of push-back, it will likely escalate.
11.13.2008 6:42pm
Spitzer:

Given that public boycotts are not illegal


Simon P:

Actually, boycotts can be illegal under the Sherman Act if the boycotter possesses monopoly power, or if the boycotter is acting to an anti-competitive end (assuming the behavior is not protected government petitioning under the Noerr-Pennington doctrine). Thus, one could construct a scenario where, say, a theater producer boycotts a particular theater, or a particular director, and by those means causes anti-competitive injury to the target, then the producer has violated the Sherman Act (even if the "stated" purpose of the boycott was to punish the target for its political stances). Frankly, I think that someone with economic power who boycotts a producer, supplier, or consumer of that person's goods runs a serious risk of incurring antitrust liability.
11.13.2008 7:00pm
Thomas_Holsinger:
I agree with Oren.
This is starting to get really embarrassing.
11.13.2008 7:05pm
Randy R. (mail):
"ProtectMarriage.com, the umbrella group behind a ballot initiative that would overturn the California Supreme Court decision that legalized gay marriage, sent a certified letter this week asking companies to withdraw their support of Equality California, a nonprofit organization that is helping lead the campaign against Proposition 8.

"Make a donation of a like amount to ProtectMarriage.com which will help us correct this error," reads the letter. "Were you to elect not to donate comparably, it would be a clear indication that you are in opposition to traditional marriage. ... The names of any companies and organizations that choose not to donate in like manner to ProtectMarriage.com but have given to Equality California will be published."

The letter was signed by four members of the group's executive committee: campaign chairman Ron Prentice; Edward Dolejsi, executive director of the California Catholic Conference; Mark Jansson, a member of The Church of Jesus Christ of Latter-day Saints; and Andrew Pugno, the lawyer for ProtectMarriage.com. A donation form was attached. The letter did not say where the names would be published."

Does this rise to the level of blackmail?
11.13.2008 7:05pm
New Pseudonym:



I watched the video in question, and it showed a woman being interviewed by a reporter and she was shouted down by protestors. There was no violence, and in fact the woman was smiling throughout the entire time. She was not attacked, although people told her to 'go home.'


I imagine we see what we want to see. You seem to have missed the part where the cross was taken away from her, thrown on the ground and trampled.


If that's the worst violence that you can come up with, then we are pretty good shape, don't you agree?

No, and No.


Sorry to pop your propaganda...


Since you haven't, no reason to feel sorry.
11.13.2008 7:26pm
DangerMouse:
Since you haven't, no reason to feel sorry.

Randy is lying. He's not sorry at all. He'd proudly pop anyone's propoganda that he disagrees with.
11.13.2008 7:29pm
first history:
California has become a battleground of industries, Indian tribes, the religious right, animal rights fanatics or wealthy individuals that haven't gotten their way with the legislature or have pet projects. Very few are really in the public interest.

Of the 12 initiatives, only 2 were placed on the ballot by the legislature. The last election featured five initiatives that were pet projects of billionaires--Peter and John Sperling (Prop 7, failed); T. Boone Pickens (Prop 10, failed), Henry T. Nicholas III (Props 6, failed & 9, passed) and George Soros (Prop 5, failed). In the case of Prop 10, nearly the entire campaign was underwritten by Pickens, who stood to benefit from nearly $5 billion in public subsidies if it passed. So at least their success rate (20%) this past election was pretty poor.

Of the remaining 7 initiatives, 2 were placed on the ballot by the legislature (both passed), 2 were sponsored by the religious right (same sex marriage (passed) and abortion notification (failed for the third time); and 1 by the animal rights lobby (passed.)

Contribution disclosure will be required as long as there are attempts to manipulate what was originally designed as a check on the legislature, but is now a tool of special interests.
11.13.2008 9:42pm
Calculated Risk:

It might make sense to exempt contributions from disclosure only when supporters of the cause have been targeted for illegal behavior.


This sounds like something of a catch-22 at least in some cases. Some people will not be targeted for illegal behavior before their names are disclosed. It might be the disclosure itself (and the knowledge that there is someone specific to target) that causes such targeting to occur. It probably is not always possible to predict this ex ante.

On the other hand, it seems to me that there is always someone to target. For example, those advocating for a ballot measure are going to need some sort of organization, and it is going to need either employees or volunteers. Presumably, with enough diligence, one could find such people behind any ballot proposition if one was so inclined. So, there probably is always someone to target for illegal activity.

A question then is, what makes donors different from individuals in these groups who do the grunt work which are typically are discoverable and thus possibly the targets of illegal activity. If donors are said to be engaging in expressive activity (I do not think that they are because spending money constitutes more action than expression in my book -- but then I didn't decide Buckley v. Valeo either) aren't the workers on the ground engaged in even more expressive activity? Are donors special? Is giving money to be elevated above more on the ground campaign activity where anonymity is more difficult to maintain?
11.13.2008 9:52pm
Jon Roland (mail) (www):
I did an informal investigation of this subject a few years ago in California. I was doing research on contributors to show bias of FPPC members, in connection with this case, and while in the Sec. of State office, engaged the other researchers, about 40, in conversation on what and why they were investigating. Not a single one was investigating potential corruption. Most were harvesting lists of potential donors to their own clients. About six frankly admitted that they were looking for the people their clients intended to harass or intimidate. They were remarkably candid about it. One of them said "These guys will never work in California again" with a tone of self-righteousness or arrogance, it was difficult to tell which.

This was not a scientific survey, of course,l but if what I encountered was a random sample, then the campaign disclosure statutes are going horribly wrong, something that many on this list probably suspect. It would be useful to investigate this possibility more scientifically.

One notes that there is no requirement for the investigators of the information to register or be subject to examination themselves.
11.13.2008 10:05pm
Smokey:
The obvious fact that some groups are using a citizen's preference for a desired voting outcome to attack that citizen for his beliefs is reason enough to treat the citizen's contributions as privileged information.
11.13.2008 10:37pm
Vanhattan (mail):
Voters have a right to know where the money supporting or not supporting a proposition is coming from. What is wrong with transparency. I think it helps both sides of the equation.

If you feel threatened by donations exposing your personal bias, then don't contribute at all or make equal contributions to each side.

Corporate America has been doing this for ages.
11.14.2008 3:28am
tvk:
Randy R.: I realize you are upset at the result, and I doubt I am the first person to put this analogy to you, but the free speech issue here is pretty seperate from the underlying merits of gay marriage. Saying that you should be able to boycott or fire someone because they contributed to Yes-on-8 means the reverse is also true: i.e. you should be able to boycott or fire someone because they contributed to No-on-8. Since a good number of contributors to No-on-8 are probably gay (such people obviously have the most intense interest in the issue), I can already predict that this will become a great way to witch-hunt and fire gay people in the parts of the country where they are not so popular.

As Orin is keen to observe, it is funny how procedural protections like this can easily be fliped, and how people are so quick to forget that they were on the receiving end of intimidation tactics not so long ago. In the case of gay people, it is particularly disappointing because they are still the victims of many objectionable tactics. Yet the minute they gain "muscle" they are apparently not hesitant to use it against others.
11.14.2008 4:57am
Mike S..:
Vanhattan: Corporate America gives to both sides because they hope for influence no matter who wins. What would the point of giving equally to both sides in a proposition? If you aren't going to advantage the side you favor, you may as well just keep your money.

Randy: It is somewhat ironic (at least from a distance) that a group that demanded privacy take precedence over public health measures 25 years ago, is now exploiting anticorruption disclosure laws to harass those with whom they have a political disagreement.
11.14.2008 8:23am
BZ (mail):
While I know lawyers generally shudder at the very thought of touching tax law, as is often the case in these situations, the Internal Revenue Service is already dealing with similar questions. Exempt organizations have to disclose tax returns and applications for exemption (as a technical note, despite common practice, most do NOT have to disclose donors, except to the IRS; this practice follows the Socialist Workers case cited by Prof. Volokh). The Regulations do not require disclosing materials to those who intend to harass the organization, and give a variety of factors to judge when an organization is being harassed.

From the internal Continuing Professional Education program of the IRS Exempt Organizations Division:

A prerequisite for a harassment campaign is the receipt by a tax-exempt organization of a "group of requests" for its exemption application and annual information returns. The final regulations do not quantify how many or how few requests constitute a "group of requests" or specify the time period over which a "group of requests" is measured. However, the final regulations include four examples that provide considerable guidance on this matter. See Regs. 301.6104(d)-5(f).

But Regs. 301.6104(d)-5(c) specifically provides that a tax-exempt organization may disregard any request for copies of all or part of an exemption application or annual information returns beyond the first two received within any 30-day-period or the first four within any one-year-period from the same individual or the same address. The tax-exempt organization may follow this rule regardless of whether the district director has determined that it is subject to a harassment campaign.

A group of requests may constitute a harassment campaign if the relevant facts and circumstances indicate that the requests are part of a single coordinated effort to disrupt the operations of the tax-exempt organization. See Regs. 301.6104(d)-5(b). Facts and circumstances that indicate the tax-exempt organization is the subject of a campaign of harassment include the following:

a sudden increase in the number of requests;

an extraordinary number of requests made through form letters or similarly worded correspondence;

evidence of a purpose to deter significantly the organization's employees or volunteers from pursuing the organization's exempt purpose;

requests that contain language hostile to the tax-exempt organization;

direct evidence of bad faith by organizers of the purported harassment campaign;

evidence that the organization has already provided the requested documents to a member of the purported harassing group; and

a demonstration by the tax-exempt organization that it routinely provides copies of its documents upon request. See Regs. 301.6104(d)-5(b).

http://www.irs.gov/pub/irs-tege/eotopico00.pdf, at P. 214.

For amusement, see if you can find the transcript of the recent American Bar Assn Tax Section's Committee on Exempt Organization May 2008 meeting in Washington, D.C., (which is reprinted in the tax literature, including Tax Analysts' Exempt Organization Tax Review) featuring a panel on self-enforcement as a control mechanism for the exempt sector. Many of these questions were debated, including by former IRS EO Division Director Marc Owens (who is a brilliant lawyer and a good friend with whom I clashed vigorously while protecting the NRA and others from the Clinton inquisitions a few years back) who pointed out that disclosure is all well and good for the average "publicly-accepted" organization, but not for the organization promoting unusual views. The situation in this thread kind of upends those expectations.
11.14.2008 9:46am
Chris 24601 (mail) (www):
The rule should definitely be limited to minor parties and initiatives that will surely lose. Freedom of speech is limited to things that do not matter much.
11.14.2008 10:21am
John D (mail):
TVK,

I agree about the boycotts.
Saying that you should be able to boycott or fire someone because they contributed to Yes-on-8 means the reverse is also true: i.e. you should be able to boycott or fire someone because they contributed to No-on-8.

I was a No on 8 supporter. If I catered to a clientele in favor of Prop 8, some of those people might have concerns as well.

Though I consider the arguments from the Yes side specious (that's no surprise, right?), I am aware that they claim that same-sex marriage is an attack on their rights.

In exactly the same terms as the opponents to 8, why would they want their money going to me, when I was likely to use some of it in support of causes they opposed? And indeed, the Christian right has called for boycotts of companies that support gay rights. I don't see why boycotts are suddenly unfair when they're being applied to people opposed to gay rights.

Now, should someone be fired for their political beliefs? In most cases, no. I can think of situations in which someone's political beliefs would be in such opposition to the employer that it would be reasonable to assume they had a ulterior motive. If a right-to-life contributor worked as a file clerk at a pro-choice organization, it would be reasonable to suspect that person was there to gather data. Short of political espionage, no.
11.14.2008 12:04pm
LA Denizen:

And indeed, the Christian right has called for boycotts of companies that support gay rights. I don't see why boycotts are suddenly unfair when they're being applied to people opposed to gay rights.


Just because one side does something doesn't make it right when the other side does. Maybe they're both wrong.

After all, it's alleged that anti-gay-rights individuals fatally dragged Matthew Shepard behind a truck. Would it be "suddenly unfair" if civil society opposed pro-gay-rights individuals dragging priests behind moving vehicles? Of cousre not--it's plain that both sides would be wrong.
11.14.2008 12:41pm
andrewdb:
John D - and that is indeed the state of the law in California - it is pretty clear that an employer cannot fire someone for what they do on their own time, outside of the office. If I were to fire someone for their political donations I would likely lose the lawsuit they could bring.
11.17.2008 1:37am