Disclosing Donors of NOM and the Freedom of Association

November 23rd, 2014

In a post documenting how the National Organization of Marriage has had a significant drop in donations, Mark Joseph Stern posits one possible reason–the fear of being unmasked chills donations:

My second, related theory is NOM’s donors are increasingly terrified of being unmasked. For years, the group flew under the radar, and donors could give anonymously. But since the Prop 8 debacle, the indefatigable Fred Karger and his merry band of campaign finance lawyers have been fighting in court, successfully, to force NOM to disclose its donor lists. As the Brendan Eich controversy illustrates, having your name linked with an anti-gay cause can irreparably tarnish your public image. For anti-gay Americans without the backbone to weather harsh criticism, a NOM donation simply isn’t worth the risk.

Stern’s point brings to mind Justice Thomas’s dissent in Doe v. Reed. In Doe v. Reed, the Supreme Court found that a Washington law that permitted the public disclosure of petition signatures for ballot initiatives survived First Amendment scrutiny. In dissent, Justice Thomas alone wrote that disclosing the signatures “chills participation in the referendum process.”

Just as “[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participa- tory democracy,” Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam), so too is citizen participation in those processes, which necessarily entails political speech and association under the First Amendment. In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records Act (PRA), Wash. Rev. Code §42.56.001, et seq. (2008), severely burdens those rights and chills citizen participation in the referendum process. Given those burdens, I would hold that Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process. I respectfully dissent.

Doe v. Reed emerged as supporters of the same-sex marriage ban reported allegations of harassment and intimidation in Washington. Similar reports were made for supporters of Prop 8 in California.

Stern’s point captures in a nutshell a theme I am developing in my work on collective liberty, where traditional liberal values clash. On the one hand, in cases stretching from NAACP v. Alabama, progressives once valued the ability of private groups to maintain the anonymity of their members. On the other hand, progressives see little value in protecting association if it is used to harm various social justice causes, such as same-sex marriage. These two values clash, and not in a reconcilable way. This is the essence of Breyer’s collective liberty. The First Amendment only works when it serves some greater goal.

I argue that the latter group is on the rise, and the latter group, is on the fall.Where the First Amendment and social justice clash, social justice prevails. Recent debates over compelled speech in the Elane Photography Case illustrate, disclosure of signatures in Houston, subpoenas of pastors, and campaign finance reform in the ACLU, illustrate this dynamic well. This is what Floyd Abrams referred to as the “disturbing recurring reality” of collective liberty.

See my remarks at the Loyola Constitutional Law Colloquium for more details.