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Chris Cassidy

Chris Cassidy

Posted: June 25, 2010 10:28 AM

Democracy Not for the "Touchy, Feely"

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Secrecy and democracy are like oil and water. Trusting voters with the right to pass laws and the responsibility to elect lawmakers, requires trusting the public with information about the laws and candidates we vote on. After all, do we really want to live in a society where voters are kept in the dark about the issues printed on our ballots?

That is the question that Washington voters answered with a resounding "no," when they passed the Public Records Act by initiative. The Act is a common-sense law allowing the public to see the petitions circulated by activists that place initiatives on the state's ballot. Among the information disclosed on such petitions are the names of those who sign them, effectively placing before voters the issue of passing or reversing a given state law.

Though it may seem obvious that voters should know who is behind an issue on their ballot, not everyone sees this issue the same way. Protect Marriage Washington -- the anti-equality organization that launched a failed assault on the state's domestic partnership laws last fall -- disagrees. The organization apparently believes that voters are responsible enough to vote on Washington's domestic partnership law, but cannot be trusted to know who is behind the opposition to the law. Despite the hypocrisy of this argument, Protect Marriage Washington took its claim all the way to the U.S. Supreme Court.

After its failed assault on Washington's domestic partnership law, the Public Records Act became the second state law to be targeted by Protect Marriage. Lawyers for the group expressed their client's purported fear of retaliation for referring domestic partnerships to the state's voters. The group argued that the Public Records Act violated the First Amendment, which, they claimed, protects the people who sign petitions putting laws in front of voters from being publicly named.

You read that right: Protect Marriage Washington tried to use the First Amendment not to protect the competition of information and ideas that drives our democracy, but to keep voters from knowing who is behind the issues they vote on.

The Ninth Circuit Court of Appeals did not buy the organization's claims last year, and the U.S. Supreme Court reached the same result in an opinion announced yesterday.

Protect Marriage Washington's fear of public scrutiny was soundly rejected by the Supreme Court in Doe v. Reed. By a vote of 8-1, the justices ended the anti-equality organization's fight to overturn the Public Records Act, validating voters' right to know who is behind the laws that turn up on the state's ballot.

"Public disclosure ... promotes transparency and accountability in the electoral process to an extent other measures cannot," Chief Justice John Roberts wrote for the Court. The justices dismissed the organization's fear of harassment and intimidation, noting that they were supported only by "scant evidence."

During oral argument, attorney James Bopp claimed on behalf of Protect Marriage that those who signed the petition to overturn the state's domestic partnership law would face indignities such as harassment and intimidation, were their names were released. Conservative Justice Antonin Scalia could not swallow the organization's claims. Scalia abruptly interrupted Bopp, telling the lawyer that his arguments were too "touchy, feely."

"The fact is that running a democracy takes a certain amount of civic courage," Scalia informed Bopp. "And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process."

Scalia, Roberts and all other justices save one made the right decision. Putting forth bald claims of potential harassment is no reason to hide information about a referendum from public scrutiny.

Perhaps most importantly, the First Amendment is intended to strengthen our democracy by encouraging the dissemination of information and an open discussion about how to interpret that information. Governance is a contact sport that should not allow for having your ideas voted on while you cower from public scrutiny. Washington's voters who passed the Public Records Act understood that, and the Supreme Court's respect for that judgment should be applauded.

 

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