There are a few election law cases of interest to Californians going on now that deserve some mention in this blog spot.
The first is a lawsuit filed late last year in federal court in Washington, D.C. by the California Republican Party and the Republican Party of San Diego County, along with the Republican National Committee, the goal of which is to challenge the constitutionality of the "soft money" restrictions of the McCain-Feingold law, also known as "BCRA" (Bipartisan Campaign Reform Act). The lawsuit, filed in the U.S. District Court for the District of Columbia, alleges the restrictions of Federal law are overly broad and unconstitutional under the First Amendment. Expedited review has been requested by the Plaintiffs. The case number is: 1:08CV01953.
Under McCain-Feingold, national parties are restricted from collecting contributions other than those subject to the rigorous Federal disclosure and contribution limits. National parties may not collect corporate contributions, even if the activity is intended to build up a state party, because corporate money is banned for Federal purposes. State parties are also forced to use more restricted Federal funds for several activities, including late election voter registration, GOTV activities before an election coinciding with a Federal election, and in communications that include the identification of both state and federal candidates.
The Roberts Court has demonstrated itself to be very pro-First Amendment, and as a result of the ruling in the Wisconsin Right to Life case, which I have written about previously, several provisions of McCain-Feingold have already been gutted. The Plaintiffs in this case are surely counting on a continuation of the logic of Wisconsin Right to Life to knock out the "soft money" restrictions on party-building activity.
Another litigation of interest involves Proposition 8, passed by California voters last November, banning gay marriage. Readers should be well-aware of the pending litigation by opponents of Proposition 8, aided by State Attorney General Jerry Brown, to rule the adopted statewide initiative "unconstitutional." Subsequent to passage of the law, reports were pervasive in the news media of "black-listing" by Prop. 8 opponents of restaurant and other business establishments whose owners were disclosed as donors to Prop. 8 on state FPPC forms. The "black-listing" was especially evident in Beverly Hills and Hollywood, and included a well-known Mexican restaurant in the area whose female owner, a Mormon, had given just $100 to help pass Prop. 8. Such "black-listing" and other reported threats to Yes on Prop. 8 donors, as a consequence of their involvement in the election process, creates facts that demonstrate a "chilling" and discouragement in participation in the political process where such participation is subject to mandatory public disclosure. This evidence changes the constitutional equation supporting the legality of disclosure.
According to press reports, the Yes on Prop. 8 supporters have "upped the ante" by moving to challenge the constitutionality of disclosure laws themselves as a result of the harassment of their supporters. I believe they are right to pursue this argument. While it is popular to support disclosure laws for election contributions, the whole constitutional underpinning of them is that, though they indeed infringe on the constitutional right to privacy, the Courts have considered them on balance a minor infringement of the privacy right when balanced against the allegedly much more important goal of eliminating the potential for corruption in elections. However, now that the Courts can be presented with concrete evidence that the infringement on privacy is not inconsequential, the traditional balance on which disclosure has rested is entirely changed. I do not expect the Courts will ultimately overturn the disclosure rules, however, readers should know that Communists and Socialists have won cases that exempt them from the political public disclosure rules when they make contributions for elections, and I believe the Yes on 8 situation has a number of similarities to the presumed facts in those cases.
January 25th, 2009 at 12:00 am
If we eliminate campaign contribution disclosure laws, we should abolish campaign finance limits.
And even if Yes on 8 fails in their lawsuit, they should get Communists and Socialists campaign disclosure exemption yanked. Special rights should be given to all or no one.
January 26th, 2009 at 12:00 am
“constitutional right to privacy”
I am having a tough time finding this in the Constitution? Perhaps you meant the emanations and penumbras of the Constitution…
January 26th, 2009 at 12:00 am
Shawn, the right to privacy is a very important right and it is indeed constitutionally-based. It includes the right to seclusion, touches on the basis for a defamation claim, and includes misappropriation of personal property such as a name, portrait, picture, or other such personal property that features in cases involving personalities and private parties alike. The right to privacy is the central consideration in balancing against the government’s justification to make your name and contact information public thru government data bases. For a long time, the right to privacy has been whittled away and under-rated in constitutional review of campaign finance reform laws. But the fact that lists of contributors obtained from the government are now being used to harass people works to shift against the legal justification for the intrusion, and the requirement of disclosure, in the case of Prop. 8 donors.
In this age of Facebook, where people aggressively put their information out for the public, it may not seem like such an important right. But it is hugely important for protection of personal freedoms. The “right to be left alone” must not be taken lightly. For a detailed discussion, see “The Law of Privacy” by David Elder, 1991, Lawyers Cooperative Publishing.
January 26th, 2009 at 12:00 am
Shawn, also see Federal Election Commission v. Hall-Tyner Campaign, 678 F 2d 416 (1982). The Communist Party need not comply with the FEC’s dsclosure rules, or keep any records at all, because of the potential for harassment, the consitutional basis of which is the right to privacy. H/T to Richard Winger for the cite on a different blog.