The election may be over, but important issues stemming from the election have yet to be resolved. Two lawsuits filed by opponents of the “everything but marriage” law, the subject of Referendum 71, are pending in federal court. The first involves the scope of the right to anonymous speech when signing initiative and referendum petitions. Recently, a petition was filed with the United States Supreme Court asking that Court to review a Ninth Circuit decision that would allow public disclosure of the names and addresses of people who signed the referendum petition. The second address the right to anonymity of those who donate in support of referendum and initiative issues. That lawsuit challenges the State law requirement that the names of most donors to the anti-referendum 71 campaign be disclosed. In both suits, the opponents of gay and lesbian partnership benefits and marriage are asserting a right to anonymity based on the controversial nature of the subject of their efforts and the avoidance of potential, not actual, harassment.
Another set of issues from the recent election campaign linger. This election, consistent with recent election trends, included a significant number of misrepresentations and outright lies as part of the political campaign. Examples include Robert Rosencrantz ads accusing Mike O’Brien of wanting to toll all Seattle streets and Protect Marriage Washington’s ads asserting that the Referendum 71 was a vote on gay marriage and would force school teachers to promote gay marriage in classrooms.
Other examples range from Susan Hutchison’s denial of any connection to the Republican Party to David Doud and affiliates’ ads and robocalls accusing Rob Holland of ethical improprieties to Mike McGinn’s robocalls accusing Joe Mallahan of favoring the NRA’s position on gun rights.
These two sets of issues are connected. And that connection undermines the right of anonymity asserted in the two pending lawsuits.
Let’s begin with two Washington Supreme Court decisions that determined free speech rights encompass the right to lie in the context of elections. In Public Disclosure Commission v. 119 Vote No! Committee (1998) and Rickert v. Public Disclosure Commission (2007), the Washington Supreme Court twice struck down laws allowing the State Public Disclosure Commission to fine candidates/interest groups for lying as part of a political campaign. While the Court’s rationale rested in part of some over-breadth issues in the laws, the gist of the Court decision was the concern that the laws in violation of the First Amendment allowed the government, rather than the people, to be the “final arbitrator of truth in political debate.” That notion is firmly in line with the principle underlying free speech that the “marketplace of ideas” is the best solution for resolving political debate and that the best response to speech with which one disagrees is “more speech not enforced silence.”
The question then becomes whether anonymous speech as asserted in the two pending lawsuits enhances the ability of the people to be the “final arbitrator of truth.” And the answer is no. Simply put, the identity of persons speaking can be an important piece of information for the public in assessing the truth of claims and in assessing the true interests supporting a candidate or initiative/referendum issue.
This is especially true when interest groups can hide behind all sorts of benign sounding names. Who funded the Family PAC (an anti-Referendum PAC funded by Dr. James Dobson’s Focus on the Family), King County Leadership Fund (an anti Dow Constantine PAC funded the Master Builders Association, the Eastside Business Alliance, Kemper Freeman’s development company, Glacier Northwest – the Maury Island gravel mine operator, Martin Selig and Bruce McCaw), and FAIRPAC (a left center coalition of interest groups that has support numerous democratic candidates).
One would never know without a public disclosure requirement of the identity of these funders. The identity of those funders can be important to voters in making their electoral choices. That this type of information matters to people is demonstrated by the last minute effort of the National Chamber of Commerce—through a benign sounding group called the Voters Education Committee—to undermine Deborah Senn’s nomination as the democratic candidate for attorney general in 2004. It is perceived that the disclosure of the Chamber’s identity was instrumental in Senn winning the nomination.
There is a legitimate argument for anonymity in the face of real threats of harassment. But in the rough and tumble of today’s politics, the assertion of mere social controversy and potential harassment is not enough to overcome the public’s right to an informed election. If “every person must be his [or her] own watchman for truth”, then disclosure of identities of funders and supporters of candidates and issues is a necessary element of our political process. We can only wait and see if the courts get this one right.
