Voters long ago settled the debate over Referendum 71, the law. Now the nation’s highest court will decide Referendum 71, the test case.
On Wednesday, the U.S. Supreme Court takes up the question of whether disclosing the names of people who signed petitions to qualify R-71 for the ballot is a violation of their political speech rights.
On one side is Washington’s Attorney General Rob McKenna, who is arguing for disclosure and for whom the case could make or break his expected bid for governor.
On the other side is a formidable foe, James Bopp Jr., an Indiana lawyer on a mission to dismantle the country’s campaign-finance laws who can spot an opportunity to further his cause half a country away.
May McKenna and Washington prevail. The case – the first time the Supreme Court has weighed a state’s public disclosure laws – is a frontal assault on open government in Washington and many other states.
Bopp won a significant victory earlier this year in another Supreme Court case that resulted in the dismantling of campaign finance limits on corporations.
Now he’s hoping a win against Washington will advance his goal of allowing “Americans to participate in politics without government trampling all over them.”
Bopp and his client, Protect Marriage Washington, have it wrong. Public disclosure – and campaign finance laws, for that matter – aren’t about government running roughshod over average citizens.
They are about the ability of average citizens to monitor government and public officials. Without the ability to see petitions, vigilant citizens would have no way to confirm the state’s verification procedures.
Protect Marriage Washington contends that signing a petition is akin to casting a ballot and worthy of the same secrecy – a claim that might amuse anyone who has seen the signature gathering process in person. Private, it’s not.
The group also argues that releasing the petitions makes signers vulnerable to harassment.
Gay-rights supporters have posted online the names of more than 1 million names of signers of similar anti-gay marriage petitions in other states. Four political scientists recently took a look at those states and could not find a single instance where the postings has resulted in threats of retaliation or harassment.
If harassment is the true concern, then the remedy is to return the case to federal district court where a judge could rule on whether the heightened emotions in this case warrant an exception to the state’s disclosure laws.
But the case isn’t really about actual harm coming to people who oppose the expansion of gay rights. It’s about furthering a political cause – at the possible expense of Washingtonians’ strong support for government transparency and accountability.