Metropolitan News-Enterprise


Wednesday, May 21, 2014


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Court Rejects Challenge to Disclosure Laws by Prop. 8 Backers


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday rejected a challenge to California campaign-finance disclosure laws by supporters of Proposition 8., the national organization for marriage and other groups that supported the constitutional ban on same-sex marriage challenged the state’s campaign-disclosure requirements after their initial victory in 2008.

Claiming that their members had been harassed for their support of the issue, the groups argued that the disclosure provision of the political reform act of 1974 was unconstitutional on its face and as applied to them. The law requires political committees to disclose, among other things, the identities, addresses, occupations and employers of supporters who give more than $100.

Reports must be filed every six months for as long as a campaign committee has money in its account, and also 12 days before an election. The pre-election report must identify donors whose contributions were received at least five days before the report was due, so if a contribution is received less than 17 days before the election, it might not have to be made public until the next semi-annual report is due, after the election.

In the case ruled on yesterday, the plaintiffs argued that the state’s interest in post-election disclosure is so minimal that mandatory reporting of late contributions is unconstitutional on its face.

Argument Rejected

U.S. District Judge Morrison England of the Eastern District of California rejected that argument, as did the Ninth Circuit.

“Both the Supreme Court and our court have rejected facial challenges to contribution disclosure requirements in several cases, holding that these substantial interests outweigh the modest burdens that the challenged disclosures impose on First Amendment rights,” Judge Milan Smith Jr. wrote for the court.

Noting that some 40 percent of the groups’ contributions related to Proposition 8—more than $12 million—had come “between the final pre-election reporting deadline and election day,” Smith said that, “without such reporting requirements, donors could undermine the state’s interests in disclosure by donating only once the final pre-election reporting deadline has passed.”

The state’s interest in disclosure is not limited to having an “informed electorate,” Smith said, but also extends to “accurate record-keeping, deterring fraud, and enforcing contribution limits.”

The panel also rejected the plaintiffs’ as-applied challenge. The issue is moot with respect to plaintiffs’ effort to purge records of past donations, and unripe with regard to their argument that they should not be required to report future contributions, Smith said.

The information at issue has already been widely available on the Internet for five years, the judge noted. And as for any future measure for which the plaintiff groups might want to raise donations, Smith said, the issue is non-justiciable absent concrete allegations as to “when they may next support a campaign opposing same-sex marriage, what type of campaign they will support, where they will support it, what their involvement will entail, or whether their donors will likely face personal harassment.

Judge Sandra S. Ikuta concurred in the opinion, but Senior Judge J. Clifford Wallace dissented in part.

Partial Dissent

Wallace said he “did not disagree with the majority’s disposition of Appellants’ facial challenges,” based on Ninth Circuit precedent, but that the plaintiffs should be allowed to challenge the rules as applied.

He cited Church of Scientology of California v. United States (1992) 506 U.S. 9. The Supreme Court held there that the improper disclosure of privileged audio tapes to the IRS did not moot a claim to destroy or return those tapes.

“The fact that records may have been ‘widely available’ on the Internet is not relevant to the inquiry mandated by Church of Scientology,” Wallace wrote, adding that the real question is whether the court could fix an injury caused by “‘government’s continued possession’ of records, where that possession is an ‘affront’ to the citizen’s privacy.”

The Center for Constitutional Jurisprudence’s John Eastman represented the plaintiffs. He said he was actually encouraged by the ruling because it did not deny the groups’ claims on their merits.

That bodes well for the groups’ challenges to similar disclosure rules in other jurisdictions, Eastman added.

“We’ve got people that have been shot at,” he said. “We easily meet the Supreme Court’s standard for exemption from disclosure laws, and this court seems to recognize that.”

Different Result

Eastman cited the majority’s finding that the case might have ended differently had the plaintiffs appealed the denial of a preliminary injunction in 2009—before the challenged information was so widely disseminated.

“I think the opinion strongly suggest that we would have prevailed on such an effort,” Eastman said, adding that he may use the ruling in potential future challenges to gay-marriage ballot initiatives in “half a dozen other states.”

Fair Political Practices Commission General Counsel Zackery Morazzini argued for the state.

“Disclosure of contributors to ballot measure committees is of vital importance to having an informed California electorate,” Morazzini said in an email. “The FPPC is pleased that the court upheld these important disclosure requirements today.”

The case is v. Bowen, 11-17884.


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