doe v reed amicus brief before supreme court joined by sunlight foundation

8/14/2019 Doe v Reed Amicus Brief before Supreme Court joined by Sunlight Foundation

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No. 09-559

In theSupreme Court of the United States

JOHN DOE#1, ET AL.,

Petitioners,v.

SAM REED,WASHINGTON SECRETARY OF STATE, ET AL.,Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OFAPPEALS FOR THE NINTH CIRCUIT

Brief ofAmici CuriaeBrennan Center for Justice,

The Center for Responsive Politics, and The SunlightFoundation in Support of Neither Party

M. Devereux ChatillonCounsel of RecordMark P. JohnsonRebecca Hughes ParkerSONNENSCHEIN NATH & ROSENTHAL LLP1221 Avenue of the AmericasNew York, NY 10020-1089(212) 768-6700

Monica Youn

Angela MigallyBrennan Center for Justice at NYU School of Law161 Avenue of the Americas, 12th Floor


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New York, New York 10013(212) 998-6730

Counsel for Amici Curiae Brennan Center forJustice, The Center for Responsive Politics, and TheSunlight Foundation


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Table of Authorities

TABLE OF AUTHORITIES

Page(s)

CASES

Alaska Right to Life Comm. v. Miles,

441 F.3d 773 (9th Cir.), cert. denied549 U.S. 886

(2006).......................................................................... 21

Brown v. Socialist Workers 74 Campaign Comm.,

459 U.S. 87 (1982)...................................................... 36

Buckley v. Am. Constitutional Law Found.,525 U.S. 182 (1999) (Buckley II) .................... passim

Buckley v. Valeo,

424 U.S. 1 (1976)................................................. passim

Burroughs v. United States,290 U.S. 534 (1934).................................................... 12

Burson v. Freeman,

504 U.S. 191 (1992).............................................. 10, 11

California Pro-Life Council, Inc. v. Randolph,

507 F.3d 1172 (9th Cir. 2007)................................28-29

Cantwell v. Connecticut,

310 U.S. 296 (1940).................................................... 35

Canyon Ferry Road Baptist Church of East

Hamption, Inc. v. Unsworth, 556 F.3d 1021 (8th

Cir. 2009).................................................................... 15

Citizens Against Rent Control v. City of Berkeley,

454 U.S. 290 (1981).................................................... 22


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Citizens United v. Fed. Election Commn,

No. 08-205, Slip. Op. (Jan 21, 2010) (558 U.S.___, 2010 WL 183856 (2010)) ............................ passim

Colorado Right To Life Comm., Inc. v. Coffman,

498 F.3d 1137 (10th Cir. 2007)................................... 21

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986).................................................... 21

First Natl Bank of Boston v. Bellotti,

435 U.S. 765 (1978).......................................... 5, 12, 22

Human Life of Washington, Inc., v. Brumsickle,

No. 008-0590-JCC, 2009 WL 62144 (W.D.Wash. 2009), appeal docketedNo. 09-35128 (9th

Cir. 2009) .................................................................... 28

Koerber v. Federal Election Commn,

583 F. Supp. 2d 740 (E.D.N.C. 2008)......................... 21

Libertarian Party of Alaska, Inc. v. State,

101 P.3d 616 (Alaska 2004)........................................ 21

Livingston v. Cedeno,186 P.3d 1055 (Wash. 2008) (en banc)......................... 4

Mcconnell v. Federal Election Commission,

540 U.S. 93 (2003), afft revg, McConnell v.

Federal Election Commission,

251 F. Supp. 2d 176 (D.D.C. 2003) ..................... passim

Minneapolis Star & Tribune Co. v. Minnesota

Comm'r of Revenue,

460 U.S. 575 (1983).................................................... 26

NAACP v. Alabama,

357 U.S. 449 (1958).................................................... 35


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New York State Bd. of Elections v. Lopez Torres,

552 U.S. 196 (2008).................................................... 34

New York Times Co. v. Sullivan,376 U.S. 254 (1964).................................................... 34

Nixon v. Shrink Missouri Govt PAC,528 U.S. 377 (2000) (Breyer, J. concurring)......... 15, 17

Ohio Right to Life Socy, Inc. v. Ohio Elections

Commn,

No. 2:08-cv-00492, 2008 WL 4186312 (S.D.Ohio Sept. 5, 2008) ..................................................... 21

Richey v. Tyson,120 F. Supp. 2d 1298 (S.D. Ala. 2000)....................... 21

Voters Educ. Comm. v. Washington State Public

Disclosure Commn ,

166 P.3d 1174 (2007).................................................. 29

Wisconsin Right to Life v. FEC,

126 S. Ct. 1016 (2006)................................................ 29

STATUTES

2 U.S.C. 434(f)(1) & (f)(2) ............................................ 27

WASH.REV.CODE 42.56.030 (2009) ............................... 4

OTHER AUTHORITIES

Adrian Vermeule, The Constitutional Law of Official

Compensation, 102 Colum. L. Rev. 501, 509(2002)............................................................................ 9

www.cfinst.org.................................................................. 26

David Hess & Charles Pope,In The Tax Bill There'sA Gift Just For Tobacco Industry, The

Philadelphia Inquirer Aug. 1, 1997............................. 19


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Davis Hess & Robert Rankin, Clinton Pledges Line-

Item Vetoes: Some Special Favors in the Tax-Cut

and Budget Bills Would be Rejected, The

Philadelphia Inquirer, Aug. 7, 1997............................ 19

Dick M. Carpenter II,Disclosure Costs: Unintended

Consequences of Campaign Finance Reform

(2007)(available atwww.ij.org/publications/other.disclosurecosts.ht

ml ................................................................................ 23

Eldon Cobb Evans,A History of the Australian Ballot

System in the United States 1-10 (1917) ..................... 10

www.followthemoney.org ................................................. 26

Griff Palmer,Decision Could Allow Anonymous

Political Contributions by Businesses, The NewYork Times, Feb. 27, 2010, available at

www.nytimes.com/2010/02/28/us/28donate.html?

pagewanted=1 ............................................................. 29

Helen Dewar, Panel Votes To Rebuke Cranston, The

Washington Post, November 20, 1991........................ 20

Jeanne Cummings,Big Pharma Veers to the Left,Politico, September 23, 2008, available at

www.politico.com/news/stories/0908/13766.............. 24

Jeanne Cummings, Women Donors Triple

Contributions, Politico, September 23, 2008,

available at

www.politico.com/news/stories/0908/13767.html...... 25

John C. Fortier & Norman J. Ornstein, The Absent

Ballot and the Secret Ballot: Challenges for

Election Reform, 36 U. Mich. J.L. Reform 483,

490 (2003)................................................................... 11


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Kimberly Kindy & Sarah Cohen, The Donors Who

Gave Big and Often, The Washington Post,January 18, 2009 ......................................................... 24

Letter from James Madison to W.T. Berry (Aug. 4,

1822), reprinted in 9 The Writings of James

Madison 103 (Gaillard A. Hunt ed., 1910). .................. 8

Michael Luo & Griff Palmer, Fictitious Donors

Found in Obama Finance Records, New YorkTimes, October 10, 2008 available at

www.nytimes.com/2008/10/10/us/politics/10dona

te.html?_r=1&scp=1&sq=fictitious%20donors&st=cse ............................................................................ 24

Michael Luo, Familys Donations to McCain RaisesQuestions, New York Times, August 7, 2008 ............ 24

Mark Schoofs,Mormons Boost Antigay Marriage

Effort: Group Has Given Millions in Support of

California Fund, Sept. 20, 2008 available atonline.wsj.com/article/SB122186063716658279.

html?mod=googlenews_wsj................................... 23-24

www.opensecrets.org/about/tour.php................................ 25

The Records of the Federal Convention of 1787

(Max Farrand ed., rev. ed. 1966) (1937) ....................... 9

Zephyr Teachout, The Anti-Corruption Principle, 94

Cornell L. Rev 341, 348 (2009) ................................ 8, 9


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No. 09-559

In theSupreme Court of the United States

JOHN DOE#1, ET AL.,Petitioners,

v.SAM REED,WASHINGTON SECRETARY OF STATE, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATESCOURT OFAPPEALS FOR THE NINTH CIRCUIT

INTEREST OF AMICI CURIAEThe Brennan Center for Justice at NYU School of

Law (Brennan Center) is a non-partisan institutethat seeks to bring the ideal of representative self-government closer to reality by working to eliminatebarriers to full and equal political participation andto ensure that public policy and institutions reflectthe diverse voices and interests that make for arobust democracy.1 The Brennan Centers Money inPolitics Project promotes reforms to ensure that our

1 This brief is filed with the consent of the parties. The letters ofconsent have been filed with the Court. Pursuant to this Courts Rule

37.6, Amici affirm that no counsel from a party authored this brief in

whole or in part, that no such counsel or party made a monetary

contribution intended to fund the preparation or submission of this brief,and that no person other than Amici and its counsel made such a

monetary contribution.


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elections embody the fundamental principle ofpolitical equality underlying the Constitution.

The Center for Responsive Politics ("CRP" or "TheCenter") is a non-partisan, non-profit 501(c)(3)research group that tracks the flow of money tofederal candidates and political parties, analyzesmoney's impact on public policy, and makes thisinformation available to the public. The Center wasfounded in 1983 by two U.S. Senators-RepublicanHugh Scott of Pennsylvania and Democrat FrankChurch of Idaho. Nearly from its inception, theCenter has played a unique role in the world ofmoney and politics, converting the raw data collected

by the Federal Election Commission (FEC) fromfederal candidates, parties and political actioncommittees, and creating from it easy-to-understandprofiles of candidates, industries, and the moneythat flows to Congress. CRP's data is widely usedand respected by news organizations, the academiccommunity, and by political professionals from allpoints on the ideological spectrum. While theCenter's core work focuses on political financeresearch and analysis, CRP also advocates effectivedisclosure and enforcement of the nation's campaign

finance laws. The Center filed a brief as amicuscuriae in the Supreme Court's consideration ofMcConnell v. FEC.

The Sunlight Foundation was founded in 2006with the non-partisan mission of using therevolutionary power of the Internet to makeinformation about Congress and the federalgovernment more meaningfully accessible tocitizens. Through its projects and grant-making,Sunlight serves as a catalyst for greater political

transparency, thus making the government moreopen and accountable. Sunlights ultimate goal is tostrengthen the relationship between citizens and


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their elected officials and to foster public trust ingovernment. Since its founding, the Foundation hasassembled and funded an array of Web-baseddatabases and tools, including OpenCongress.org,FedSpending.org, OpenSecrets.org, andEarmarkWatch.org, that make millions of bits ofinformation available online about members ofCongress, their staff, legislation, federal spending,and lobbyists. The Sunlight Foundation has aparticular interest in promoting the electronicdisclosure of political expenditures at all levels ofgovernment.


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SUMMARY OF ARGUMENTPetitioners ask this Court to invalidate the

Washington State Open Records Act at least to theextent it requires disclosure of the identities ofsignatories to petitions to place initiatives on theballot in that State. The Acts stated purpose is tofoster open government and to allow the citizens ofWashington to ensure that their governmentoperates responsibly: The people insist onremaining informed so that they may maintaincontrol over the instruments that they have created.WASH. REV. CODE 42.56.030 (2009); see also

Livingston v. Cedeno, 186 P.3d 1055, 1058 (Wash.2008) (en banc) (The primary purpose of the publicrecords act is to provide broad access to publicrecords to ensure government accountability.). Insome tension with this public interest in open andtransparent government, Petitioners assert aninterest in keeping their political participationprivate, citing a fear of a spectrum of reprisalsranging from social ostracism to demonstratedhostility, and even harassment. This caseundoubtedly raises sensitive and serious questions,

requiring the Court to strike a balance amonginterests of constitutional significance the publicsinterest in open government and robust publicdebate and the individuals interest in maintainingprivacy for ballot-related activities. The purpose ofthis submission by amici is not to urge the Court toreach a particular resolution of the claims before it,but rather to direct the Courts attention to thebroader disclosure interests that could be affected byits disposition of this case.

In this regard, it is important to recognize thatwhat this case does not involve is an issue that goesto the heart of our constitutional guarantee of


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democratic self-governance the necessity ofdisclosure when money is spent on politicalcampaigns and candidates. Money in politics isdifferent in kind from other election regulationissues. Where money is spent to influence theoutcome of elections, vigilance is required to ensurethat influence-peddling does not corrupt ourdemocracy and that voters are empowered to makeinformed decisions about how such spending mayhave influenced their candidates and laws.Sunlight is said to be the best of disinfectants;electric light the most efficient policeman. L.Brandeis, Other Peoples Money 62 (National Home

Library Foundation ed. 1933), quoted in Buckley v.Valeo, 424 U.S. 1, 67 (1976). Accordingly, this Courthas consistently recognized that specialconstitutional and public interests arise in thecontext of disclosure laws that bring to light the too-often hidden flow of money through our politicalsystem. A clear and unbroken line of Supreme Courtauthority holds that campaign finance disclosureprovisions serve anti-corruption and informationalinterests critical to a vibrant and functioningelection system. Buckley v. Valeo, 424 U.S. at 1,

First Natl Bank of Boston v. Bellotti, 435 U.S. 765(1978); Buckley v. Am. Constitutional Law Found.,525 U.S. 182 (1999) (Buckley II), McConnell v. Fed.Election Commn, 540 U.S. 93 (2003). Indeed, thisCourts recent Citizens United decision specificallyreaffirmed the necessary role of campaign financedisclosure laws in our democracy.

Ignoring this ruling, as well as the uniqueconstitutional context of money in politics,Petitioners attempt to elide the distinction between

campaign finance disclosure laws and other forms ofpublic disclosure laws that do not directly implicatepolitical spending, such as the application of the Act


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at issue here. Indeed, Petitioners go further,devoting the first six pages of their brief to extra-record factual submissions regarding a law and anissue that is not before this Court the effect ofCalifornias campaign finance disclosure laws oncontributors to that states Proposition 8 campaign.Petitioners devote additional pages of their brief toother supposed factual consequences of campaignfinance disclosure laws, and conflate case law fromthe campaign finance context with other disclosurelaws without any apparent regard for the uniqueinterests that come into play when money enters therealm of politics. (Petitioners Brief, filed February

25, 2010, 43-48 (Pet. Br.)) Petitioners thus invitethe Court to fashion a radically broad and hithertoundiscovered right to anonymous speech that wouldoverturn decades of this Courts precedent byrefusing to differentiate between laws requiringdisclosure of other activities and laws that disclosethe uniquely problematic workings of money inpolitics.

Amici urge the Court to reject this improperinvitation. As a procedural matter, with regard tothe sphere of campaign finance disclosure

regulations, neither the factual allegations nor theconstitutional issues raised by Petitioners areproperly before this Court. With respect to theactual issue presented here, the Court may, andindeed should, address the constitutionality of theWashington statute, and the possible disclosure ofthe names of the individuals who signed the ballotinitiative petitions in question, without reaching theseparate factual and legal questions interests to beweighed in evaluating disclosure requirements

aimed at monetary influence on the electoralprocess. More fundamentally, the curtain of privacythat is appropriate to the voting booth should not be


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drawn to hide the workings of money in politics frompublic scrutiny and from political accountability.Petitioners broadest argument, if accepted, couldusher in a new dark age for our politics, wherecorruption could flourish undetected and votersmark ballots in ignorance.


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unlawful acts like bribery. The Framers understoodpolitical corruption as an expansive concept.

To the delegates [at the ConstitutionalConvention] political corruptionreferred to self-serving use of publicpower for private ends, including,without limitation, bribery, publicdecisions to serve private wealth madebecause of dependent relationships,public decisions to serve executivepower made because of dependentrelationships, and use by public officials

of their positions of power to becomewealthy.

Id. at 373-74; see also Adrian Vermeule, TheConstitutional Law of Official Compensation, 102Colum. L. Rev. 501, 509 (2002) (discussing concernthat executive with access to the treasury as well asto offices could corrupt legislators and free itselffrom popular oversight). The delegates corruptionconcern was thus not limited to bribery or otherunlawful acts. At the Constitutional Convention, for

example, Gouverneur Morris explicitly said that thecorruption concern encompassed lawful abuses ofpower, not merely unlawful abuses or usurpation.Teachout at 376 (citing Notes of James Madison(July 19, 1787), in 2); The Records of the FederalConvention of 1787, at 52 (Max Farrand ed., rev. ed.1966) (1937); see also Teachout 363-64 (2009).Disclosure is required to bring such corruptingabuses to light.

As the nation developed, and the framersconcerns regarding the corrupting potential of moneyin politics proved well-founded, the use of a secretballot now considered a hallmark of the countrys


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electoral system developed in response to concernsabout combating the influence-peddling that canarise when money enters the political sphere. At thetime of the adoption of the Constitution, the countrywas a smaller, agrarian nation. Most of thepopulation lived in small towns where there was noexpectation of privacy around the exercise of politicalpower and voting was typically done in public. SeeBurson v. Freeman, 504 U.S. 191, 200 (1992); seealsoEldon Cobb Evans, A History of the AustralianBallot System in the United States 1-10 (1917).During the late 1800s, however, as the populationincreased and migrated to urban areas, political

corruption began to rapidly increase. Non-secretvoting was perceived as the root of the problem. Byallowing party bosses to check on how individualsvoted and refuse to pay if an individuals vote did notmatch his promise, a non-secret ballot enabled votebuying. See Burson, 504 U.S. at 200; Evans, at 10-14, 21. Until the late 1800s, votes were regularlytraded for money. As one contemporary writerdescribed:

This sounds like exaggeration, but it is

truth . . . that the raising of colossalsums for the purpose of bribery hasbeen rewarded by promotion to thehighest offices in the Government; thatsystematic organization for thepurchase of votes, individually and inblocks, at the polls, has become arecognized factor in the machinery ofthe parties; that the number of voterswho demand money compensation for

their ballots has grown greater witheach recurring election.


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Burson, 504 U.S. at 201 n.6 (quotingJ. Gordon, TheProtection of Suffrage 13 (1891)). As a directresponse to this practice, states increasingly adopteda secret ballot. By 1910, the last state adopted theprivate ballot for most elections. John C. Fortier &Norman J. Ornstein, The Absent Ballot and theSecret Ballot: Challenges for Election Reform, 36 U.Mich. J.L. Reform 483, 490 (2003).

The universal adoption of the secret ballot as atool to combat corruption and enhance public faith ingovernment coincided with the first federal lawmandating disclosure of election-related spending.In 1910, Congress enacted the Federal Corrupt

Practices Act, the first federal law to establish publicdisclosure of federal campaign spending. Buckley v.Valeo, 424 U.S. at 61. While upholding theseprovisions in 1925, the Court for the first timeexpressly sanctioned the use of disclosure as a tool tocombat corruption:

Congress reached the conclusion thatpublic disclosure of politicalcontributions, together with the namesof contributors and other details, would

tend to prevent the corrupt use ofmoney to affect elections. The verity ofthis conclusion reasonably cannot bedenied. When to this is added therequirement contained in section 244,that the treasurers statement shallinclude full particulars in respect ofexpenditures, it seems plain that thestatute as a whole is calculated todiscourage the making and use of

contributions for purposes ofcorruption.


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Burroughs v. United States, 290 U.S. 534, 548(1934). As illustrated below, since Burroughs, theCourt has repeatedly upheld disclosurerequirements.

II. Contrary to Petitioners Contentions, ThisCourt Has Not Recognized A Right To SpendMoney Anonymously in Political CampaignsThe Court has never recognized a general right to

spend money anonymously in elections. To thecontrary, from Buckley v. Valeo, 424 U.S. 1, toCitizens United v. Fed. Election Commn, No. 08-205, Slip. Op. (Jan 21, 2010) (558 U.S. ___, 2010 WL183856 (2010)),2 this Court has repeatedly uphelddisclosure and disclaimer provisions relating tocampaign contributions and independentexpenditures in both ballot measure and candidateelections. Buckley v. Valeo, 424 U.S. 1; Buckley II ,525 U.S. 182 (ballot measures); Bellotti, 435 U.S.765 (ballot measures); McConnell, 540 U.S. 93;Citizens United. Petitioners nonetheless relyheavily on Buckley v. Valeo, 424 U.S. 1 andMcIntyre v. Ohio Elections Comm., 514 U.S. 334

(1995), to support their claim of a general right toanonymity in the political process that is broadenough to defeat disclosure of political spending.Pet. Br. at 24-25. Neither case supports this broadproposition.

In Buckley v. Valeo, 424 U.S. 1, contrary toPetitioners claims, the Court did not articulate ageneral privacy interest in political spending. Pet.Br. at 24-26. To the contrary, the Court recognized

2

Citations to Citizens United v. Fed. Election Commn, No.08-205, Slip. Op. (Jan 21, 2010) (558 U.S. ___, 2010 WL 183856(2010)) are to the Slip Opinion herein.


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extremely narrow and fact-specific exemption todisclosure. At issue in McIntyrewas an as-appliedchallenge to a state law that required a disclaimeron all campaign literature, regardless of the volumeof such literature. Id.at 336, 339. Plaintiff was alone pamphleteer who had distributed personallycrafted leaflets at a public meeting to oppose areferendum on a school tax levy. Id. at 337. Inholding that the provision was unconstitutional asapplied to her, the Court took great care to delineatethe boundaries of its decision, and distinguisheddirect regulation of leaflets from regulation offinancial disclosures. Id. at 355 ([I]dentification of

the author against her will . . . revealsunmistakably the contents of her thoughts on acontroversial issue. Disclosure of an expenditureand its use . . . reveals far less information.) TheCourt also clarified that its decision did not addressthe more expensive medium of broadcastcommunications but addressed only writtencommunications and, particularly, leaflets of thekind Mrs. McIntyre distributed. Id. at 338 n.3. Inaddition, the Court expressly reaffirmed theconstitutionality of disclosure requirements of

contributions and expenditures in candidateelections previously upheld in Buckley v. Valeo,noting that those requirements contained athreshold that excluded de minimisspending. Id. at355-56. The Court also reaffirmed its prior statedapproval of disclosure of corporate spending in ballotmeasure elections articulated in Bellotti. Id. at 353-54.

Thus, contrary to Petitioners characterization ofthe case as establishing a broad right to anonymous

speech, McIntyre instead represents a narrow


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opinion that expressly does not consider thesebroader financial disclosure issues. Id.3 Indeed, asJustice Ginsburg wrote in concurrence,appropriately leaving open matters not presentedby McIntyres handbills, the Court recognizes that aStates interest in protecting an election processmight justify a more limited identificationrequirement. Id. at 358.

III. The Publics Interests in CombatingCorruption and Empowering Voters to MakeInformed Decisions Apply With SpecialConstitutional Significance to Disclosures ofPolitical Spending.

As this Court repeatedly has recognized, the FirstAmendment interests of political actors are not theonly constitutional interests this Court mustconsider. When political spending is regulated toensure the integrity of the democratic system,constitutionally protected interests lie on both sidesof the legal equation [because such regulations]seek to protect the integrity of the electoral process-the means through which a free society

democratically translates political speech intoconcrete governmental action. Nixon v. ShrinkMissouri Govt PAC, 528 U.S. 377, 400-01 (2000)(Breyer, J. concurring). The public has a

3 The Ninth Circuit has adopted this approach todisclosure. In Canyon Ferry Road Baptist Church of EastHampton, Inc. v. Unsworth, 556 F.3d 1021, 1034-35 (9th Cir.2009), the Ninth Circuit held that a Montana disclosureprovision that required reporting ofde minimislevels of in-kindexpenditures in support of a ballot measure to be reported was

unconstitutional as applied to a Church. The Court held thatdisclosure ofde minimisamounts of support was not sufficientto achieve the governments goal to inform voters.


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constitutional stake in the question of who is payingfor its laws. Buckley II, 525 U.S. at 214 (Thomas, J.concurring) (I am willing to assumethatColorados interest in having this information madeavailable to the press and its voters [] before theinitiative is voted uponis compelling. Thereporting provision ensures that the publicreceives information demonstrating the financialsupport behind an initiative proposal beforevoting.).

By conflating case law concerning disclosure inthe campaign finance context and disclosure in othercontexts, the Petitioners fail to recognize the unique

public interests that justify the incidental burdenthat disclosure of election-related spending mayimpose on the political activities of people andcorporations. Indeed, the Court in the seminal caseof Buckley v. Valeo recognized that disclosure ofcampaign spending is the least restrictive means ofcurbing the evils of campaign ignorance andcorruption that Congress found to exist. 424 U.S. at68 (footnote omitted).

Since Buckley v. Valeo, the Court hasconsistently recognized that disclosure of political

spending: (1) deter[s] actual corruption and avoid[s]the appearance of corruption by exposing largecontributions and expenditures to the light ofpublicity; (2) provides the electorate withinformation as to where political campaign moneycomes from and how it is spent by the candidate inorder to aid the voters in evaluating those who seekfederal office; and (3) [is] an essential means ofgathering the data necessary to detect violations ofthe contribution limitations. 424 U.S. at 66-68;

accord McConnell, 540 U.S. at 196 (affirmingcompelling governmental interests in providing theelectorate with information, deterring actual


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corruption, avoiding the appearance thereof, andgathering the data necessary to enforce moresubstantive electioneering restrictions). On thesebases, this Court, along with lower federal courtsand state courts, has consistently upheld robustcampaign finance disclosure regimes. Buckley v.Valeo, 424 U.S. at 61-62; Nixon, 528 U.S. 377;Buckley II, 525 U.S. 182; McConnell, 540 U.S. 93;Citizens United.

This Courts decision in Buckley II aptlydemonstrates key distinctions between the differinggovernmental interests present in disclosure relatedto monetary political activity and disclosure related

to identity of political speakers with no financialcomponent. In Buckley II, the Court was called uponto decide the constitutionality of Coloradoregulations of the ballot initiative process theprocess under which laws are enacted by ballotreferenda. 525 U.S.at 186. Some of the regulationsrequired name tags and other on-site identificationof ballot circulators, the people who approachedvoters to gain petition signatures, even though theballot circulators were required to file affidavits withthe state disclosing their identification at the time

they submitted their petitions. Others required thatthose ballot circulators be registered Colorado votersand meet other criteria. The Court had little troublestriking down most of those regulations as anunjustified burden on the First Amendmentprotected speech right to circulate ballot petitions.Id. at 197, 200.

The Court declined, however, to upset the staterequirements mandating disclosure of the names ofproponents of ballot initiatives and the amount

spent to collect signatures for their petitions. Id. at203-04. That disclosure requirement informedvoters of the source and amount of the money spent


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citizenry and press to detect and respond toimproper uses of money in politics and in governing.424 U.S. at 67. The Court stated that suchdisclosures served to discourage those who woulduse money for improper purposes either before orafter the election and that a public armed withinformation about a candidates most generoussupporters is better equipped to detect any specialfavors after the election is over. Id. The Court heldthat these interests were sufficiently important tooutweigh the possibility of infringement [of theexercise of First Amendment rights], particularlywhen the free functioning of our national

institutions is involved. Id. at 66.Over the years, facts have amply borne out theCourts prediction, as a press and voting public haveused disclosure laws to hold elected officialsaccountable for apparent undue influence. Forexample, in 1997, the President of Amway and hiswife collectively contributed $1 million to theRepublican Party. The press reported widely on this,linking it to an eleventh-hour intervention by theRepublican Speaker of the House to push a tax-billthat provided Amway with a tax break worth $280

million. Davis Hess & Robert Rankin, ClintonPledges Line-Item Vetoes: Some Special Favors inthe Tax-Cut and Budget Bills Would be Rejected,The Philadelphia Inquirer, Aug. 7, 1997 at A1; DavidHess & Charles Pope, In The Tax Bill There's A GiftJust For Tobacco Industry, The PhiladelphiaInquirer Aug. 1, 1997 at A1. Disclosure also enabledthe Senate Ethics Committee to hold Senator AlanCranston accountable for his improper conduct inthe infamous Keating 5 scandal of the 1980's. The

Ethics Committee rebuked Senator Cranston afterdiscovering that he intervened with regulators onbehalf of a Savings and Loan while soliciting almost


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requirements pertaining to these electioneeringcommunications. (Slip Op. at 50-52.)

Following this Courts lead, State and lowerfederal courts have also consistently upheldcampaign finance disclosure statutory schemes, andrecognized that that disclosure serves anti-corruption interests. Ohio Right to Life Socy, Inc. v.Ohio Elections Commn, No. 2:08-cv-00492, 2008 WL4186312, at *6 (S.D. Ohio Sept. 5, 2008) (upholdingOhios campaign finance disclosure law because itwas supported by the same compelling interests inpreventing corruption and the appearance ofcorruption that were recognized in McConnell)

Koerber v. Federal Election Commn, 583 F. Supp.2d 740, 746 (E.D.N.C. 2008) (upholding disclosurerequirements since they bore a strong correlationto the interests recognized in Buckley v. Valeo andMcConnell)); Libertarian Party of Alaska, Inc. v.State, 101 P.3d 616, 623 (Alaska 2004) (upholding

Alaskas soft money disclosure requirements ); seeColorado Right To Life Comm., Inc. v. Coffman, 498F.3d 1137, 1144 (10th Cir. 2007) (upholding againsta facial challenge a requirement that nonprofitorganizations disclose disbursements for

electioneering communications over a $1,000threshold);Alaska Right to Life Comm. v. Miles, 441F.3d 773, 791 (9th Cir.), cert. denied 549 U.S. 886(2006) (upholding as constitutional Alaskasregistration and financial reporting requirements forall non-PAC groups, even if they are small nonprofitpolitical organizations of the type contemplated inFEC v. Massachusetts Citizens for Life, Inc., 479U.S. 238 (1986)); Richey v. Tyson, 120 F. Supp. 2d1298 (S.D. Ala. 2000) (holding that groups whose

major purpose is not electioneering may neverthelessbe required to disclose express advocacy). It


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cannot be disputed that disclosure is the sine quanonof combating corruption.

B. Voter Informational Interest Another vital interest behind disclosure

requirements that the Court has repeatedlyrecognized over the last thirty years is providing theelectorate with information as to where politicalcampaign money comes from and how it is spent,thereby aiding electors in evaluating those who seektheir vote. Buckley II, 525 U.S. at 202 (quotingBuckley v. Valeo, 424 U.S. at 66). Information aboutelections, candidates, funding of candidates andissues, is indispensable to the functioning of ademocracy in which the voters decide who runs thegovernment. As described by the Buckley v. ValeoCourt, disclosure of financial contributions andspending allows voters to place each candidate inthe political spectrum more precisely than is oftenpossible solely on the basis of party labels andcampaign speeches, and helps facilitate predictionsof future performance in office. 424 U.S. at 66-67;see also Bellotti, 435 U.S. at 792 n. 32

(Identification of the source of advertising may berequired as a means of disclosure, so that the peoplewill be able to evaluate the arguments to which theyare being subjected); Citizens Against Rent Controlv. City of Berkeley, 454 U.S. 290, 298 (1981)([T]here is no risk that the voters will be in doubtas to the identity of those whose money supports oropposes a given ballot measure since contributorsmust make their identities known.).

Contrary to Petitioners arguments to this Court,this fundamental public interest in disclosure is not

undermined by non-peer reviewed studies


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containing polls of voters and whether theyaccessed specific records. Pet. Br. at 44 5 It is,however, incontrovertible that the institutionalpress, the internet press, academia and manypublicly inclined not for profit organizations havemade widespread use of the data generated by thelongstanding public disclosure requirements, andthat these reports have been disseminated widelyboth before and after elections. This kind ofinformation has been used for indispensablereporting during elections, revealing the depth andnature of support for particular candidates, partiesor causes.

For example, Petitioners chronicle the allegedharassment that occurred as a result of disclosureduring Californias Prop 8 election in their brief butthey completely ignore the vital information thatwas disseminated to voters as a result of disclosurein that case. In the months leading up to theelection, the press, relying on disclosure reports,reported that nearly one-third of the $15 millionraised in support of Prop 8 was raised by theMorman Church. Mark Schoofs, Mormons Boost

5 The study that is cited by Petitioners is actually a publicopinion poll commissioned by the Institute of Justice and filledwith stories of citizens who allegedly were damaged in someway by having to comply with election related regulations.Dick M. Carpenter II, Disclosure Costs: UnintendedConsequences of Campaign Finance Reform(2007)(available atwww.ij.org/publications/other.disclosurecosts.html). It isrespectfully submitted, however, that before such materialwhose methodology and integrity cannot be easily verified isrelied upon for such sweeping conclusions as that disclosureprovisions do not inform voters, it should be properlyauthenticated, introduced into evidence and its proponents and

provenance be subject to cross-examination. Pet. Br. at 45.This is especially true as this conclusion contravenes decades ofthis Courts precedents, common sense, and the public record.


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Antigay Marriage Effort: Group Has Given Millionsin Support of California Fund, Sept. 20, 2008available atonline.wsj.com/article/SB122186063716658279.html?mod=googlenews_wsj. Certainly this informationwas of vital importance to California voters seekingto make an informed decision regarding how to voteon this proposition.

As a further example, during the 2008presidential campaign, for example, the dataavailable allowed reporters to scrutinize both theObama and McCain campaigns funding sources.See e.g. Michael Luo, Familys Donations to McCain

Raises Questions, New York Times, August 7, 2008(discussing the donations connected to one extendedJordanian family in California to John McCain,Hillary Rodham Clinton and Rudolph Guiliani);Jeanne Cummings, Big Pharma Veers to the Left,Politico, September 23, 2008, available atwww.politico.com/news/stories/0908/13766.html(reporting that to date the drug companies havegiven a total of $17 million, with half ($8.5 million)going to Democrats and half ($8.5 million) going tothe old allies). In particular, the Obama campaign

widely publicized its claim that it had raised asignificant amount of money from small donors.Information obtained from campaign financedisclosures enabled reporters to analyze thatinformation. See Michael Luo & Griff Palmer,Fictitious Donors Found in Obama Finance Records,New York Times, October 10, 2008 (addressingconcerns, after false names were discovered on thecandidate Obamas campaign finance records, thatthe Obama campaign was not vetting its

unprecedented flood of donors properly) availableatwww.nytimes.com/2008/10/10/us/politics/10donate.ht


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ml?_r=1&scp=1&sq=fictitious%20donors&st=cse;Kimberly Kindy & Sarah Cohen, The Donors WhoGave Big and Often, The Washington Post, January18, 2009 at A02 (Nearly 100 wealthy families andpower couples contributed at least $100,000 each tohelp Barack Obama over the past two years.)

This kind of data and the reporting on it alsosheds light on the wider picture of political activismin this country. Politico.com reported, for example,that women gave triple the amount of money topresidential candidates in 2008 than they did in2000. Jeanne Cummings, Women Donors TripleContributions, Politico, September 23, 2008,

available atwww.politico.com/news/stories/0908/13767.html.Despite Petitioners study claiming that the

public does not access campaign finance data, thewidespread use and dissemination of this data isundeniable.6 For example, the websiteopensecrets.org, run by Amicus, The Center forResponsive Politics, counted over 15 million visitorsin 2007. Opensecrets.org aggregates andsynthesizes large amounts of campaign relatedinformation made public through disclosure

requirements in a format that is easy to use by boththe public and the press.www.opensecrets.org/about/tour.php. According tosearches in Westlaws ALLNEWS database thewebsite's campaign finance data has been used in

6 Petitioners arguments here are mutually contradictory.On the one hand they claim that information generated bydisclosure is so widespread and pervasive that it leads to anongoing and urgent danger to privacy. Pet. Br. at 46-47. On theother, they contend, the information is so insignificant that it is

buried in government archives and utterly fails to fulfill itsintended purpose of informing voters. Pet. Br. at 44. Petitionersare certainly incorrect in their latter contention.


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news and opinion articles in more than 10,000instances. 7

As the above examples demonstrate, campaignfinance disclosures are essential to enable the pressto perform its function as the watchdog ofgovernment. Minneapolis Star & Tribune Co. v.Minnesota Comm'r of Revenue, 460 U.S. 575, 585(1983) (the basic assumption of our political system[is] that the press will often serve as an importantrestraint on government. and an informed publicis the essence of working democracy.). Such a role isnot possible if the important facts concerningfunding and influence are hidden from both the

press and the public.The public interest in financial informationrelating to elections is not limited to campaigncontributions, but also extends to information aboutthe funding of individual expenditures. While thereare no limits on the amounts that may be spentindependently in connection with an election,independent expenditures, like campaigncontributions, trigger disclosure requirements underthe federal statutes.8 These disclosure requirementsensure that voters, opposing candidates, and the

7 A search made on March 2, 2010, in the Westlaw ALLNEWS database for the website's administeringorganization, the Center for Responsive Politics, generated over10,000 instances in which the website's campaign finance datehas been used in news and opinion reports and articles. Otherwebsites that generate reports and articles from campaignfinance disclosure data include the Campaign FinanceInstitute, www.cfinst.org/ , National Institute on Money inState Politics www.followthemoney.org, and politico.com.

8 The disclosure requirements for independent expendituresrequire that expenditures above specific thresholds within a

certain time period before an election or primary be reported tothe Federal Election Commission. See e.g., 2 U.S.C. 434(f)(1)&(f)(2).


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public understand the full context of an election forpublic office--who supports the candidate, whoopposes the candidate, the basis published for thatposition and information helpful to evaluating thatpublicly acknowledged position. McConnell, 540U.S. at 196-97 (2003); see Citizens United, supra,Slip Op. at 51, 52, 55. In McConnell, the Courtrelied upon the extensive factual record that hadbeen developed in the court below and citedexamples of how the system had been abused topermit corporations and labor unions to fundadvertisements designed to influence elections whileconcealing their identities from the public. The

Court quoted from the District Courts opinion thewry observation that Plaintiffs never satisfactorilyanswer the question of how uninhibited, robust, andwide-open speech can occur when organizations hidethemselves from the scrutiny of the voting public,and characterized the position before it as ignoringthe competing First Amendment interests ofindividual citizens seeking to make informed choicesin the political marketplace. Id. at 197, quotingMcConnell v. FEC, 251 F. Supp. 2d at 237. TheMcConnell Court further noted that disclosure

requirements concerning the funding ofelectioneering communications were constitutional,both because they do not limit speech and becausethey inform the electorate:

As the District Court observed,amended FECA 304s disclosurerequirements are constitutional becausethey d[o] not prevent anyone fromspeaking. Moreover, the required

disclosures would not have to revealthe specific content of theadvertisements, yet they would perform


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an important function in informing thepublic about various candidatessupporters beforeelection day.

540 U.S. at 201 (internal citations omitted)(emphasisin original).

Lower courts have also found that disclosureserves an informational interest for voters. AWashington federal district court concluded thatdisclosure of spending on ads about ballot issues wasconstitutional because of the publics right to cast aninformed vote:

Accordingly, the Court rejects[plaintiffs] contention that there is abright-line rule prohibiting theregulation of issue advocacy and holdsthat the states compelling interests ininforming the electorate and protectingcontributors justify requiring politicalcommittees to report on and discloseall expenditures made in support of, oropposition to ... a ballot proposition.This holds even when expenditure is

defined to include some advocacy as tothe issue underlying the proposition,as long as such regulations are limitedto the specific issue on which thepublics vote is being sought.

See also Human Life of Washington, Inc., v.Brumsickle, No. 008-0590-JCC, 2009 WL 62144, at*18 (W.D. Wash. 2009), appeal docketed No. 09-35128 (9th Cir. 2009); see also California Pro-LifeCouncil, Inc. v. Randolph, 507 F.3d 1172, 1189 (9th

Cir. 2007) (Californias campaign finance disclosurelaw serve an informational interest).


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This critical need for public information about theforces affecting elections in this country are stymiedwhen financial interests hide behind false andinnocuous sounding names to disguise their trueidentity and agendas.9 One recent example of thisoccurred when the U.S. Chamber of Commerce gavea substantial donation to a group with a benignsounding name that did not comply with applicabledisclosure requirements. Voters Educ. Comm. v.Washington State Public Disclosure Commn, 166P.3d 1174 (2007). The Chamber had given $1.5million dollars to a group called the VotersEducation Committee which in turn spent the

money on political television advertisementscriticizing Deborah Senn, a candidate for AttorneyGeneral of Washington, without registering as apolitical committee or disclosing information aboutits contributions and expenditures. Id. at 1177.Concluding that the organization should have beenregistered as a political action committee under

9 Troublingly, the incidence of undisclosed corporatepolitical spending appears to be increasing. For example, arecent New York Times article about the effects on the fundingof elections that followed this Courts decision in WisconsinRight to Life v. Federal Election Commn, 546 U.S. 410 (2006),concluded that After the 2006 Wisconsin Right to Life decision,there was no sudden surge in direct corporate spending onissue advertising. Electioneering communications spending bynonprofit groups that did not identify their donors, however,increased sharply. Of the $98.7 million in electioneeringcommunications reported in the 2004 cycle, virtually all wasaccompanied by identification of at least some donors. In the2008 cycle, over one-third of the $116.5 million reported wasnot accompanied by donor identification. Griff Palmer,Decision Could Allow Anonymous Political Contributions by

Businesses, The New York Times, Feb. 27, 2010, available atwww.nytimes.com/2010/02/28/us/28donate.html?pagewanted=1.


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Washington law, the court explained that thesedisclosure requirements do not restrict politicalspeech--they merely ensure that the public receivesaccurate information about who is doing thespeaking. Id. at 1189.

The record in before the Court in McConnellcontained many examples of interests that veiledtheir federal political expenditures with misleadingnames. There, the Court found that the TheCoalition-Americans Working for Real Change wasa business organization opposed to organized laborand Citizens for Better Medicare was funded bythe pharmaceutical industry. 540 U.S. at 128, 197.

Wealthy individuals have used similar tactics. Forexample, Texas millionaires and brothers Charlesand Sam Wyly spent approximately $25 million onadvertisements endorsing George W. Bush duringthe 2000 primaries. They did so, however, insecrecy, using the name of Republicans for Clean

Air to shield their involvement. McConnell v. FEC,251 F. Supp. 2d at 232.

In short, the real need of the voters to understandwhat issues, which institutions, and whose moneyare actually at play in an election creates a critical

disclosure interest not necessarily implicated in thedisclosure of petition signatures at issue in thepresent case.

C. Citizens United Reaffirmed the CriticalGovernmental Interests in RequiringTransparency of Money in PoliticsJust a few months ago, this Court issued an

important ruling that reaffirmed by the disclosurerequirements for independent expenditures against

a claim of constitutional burdens on association andinfringement of privacy interests. In CitizensUnited, the Court expressly based this part of its


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ruling joined by eight justices upon the keygovernmental and societal interests in providing theelectorate with information. The Court made clearthat:

The First Amendment protects politicalspeech; and disclosure permits citizensand shareholders to react to the speechof corporate entities in a proper way.This transparency enables theelectorate to make informed decisionsand give proper weight to differentspeakers and messages.

Slip Op. at 55. While simultaneously ruling thatsuch expenditures are deserving of the broadestFirst Amendment protection and striking down longstanding federal statutes prohibiting corporationsand labor unions from engaging in such independentexpenditures, this Court emphasized the importanceof transparency in the remaining campaignregulatory system. The Court accordingly rejectedthe challenge to the provisions mandating disclosureof independent expenditures. Id. at 52. In doing so,

the Court held that disclosure must be substantiallyrelated to a sufficiently important governmentinterest. Id. at 51 (quoting Buckley v. Valeo, 424U.S. 1, 64, 66 (1976)), and the Court found sufficientthe governments interest in informing the public onthe sources of election-related spending. Id. (citingBuckley v. Valeo, 424 U.S. at 66).

The Court also explicitly recognized theInternets key role in facilitating transparency in thecontext of money and politics. While Petitionershave emphasized what they believe are the negativepossibilities in the free availability of information onthe Internet (Pet. Br. at 46-49), they completely


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overlook the Internets enormous capacity tostreamline access to information that previouslywould have been available only to scholars orgovernment officials and would not have beensufficiently timely to help voters evaluate candidatesor election issues. Modern technology makesdisclosures immediate and informative, therebyenabling citizens, for example, to learn aboutcandidates financial support prior to an election.Citizens United (With the advent of the Internet,prompt disclosure of expenditures can provideshareholders and citizens with the informationneeded to hold corporations and elected officials

accountable for their positions and supporters.).The Internet also provides rapid access to corporatefinancial disclosures that allow shareholders todetermine whether their corporations politicalspeech, in the form of independent expenditures,advances their corporations legitimate interests.Slip Op. at 55.

This Court in Citizens United concluded thatdisclosure requirements coupled with the readyavailability of information on the Internet renderedsome of the concerns that had motivated Congress to

ban certain kinds of spending less valid:

Shareholders can determine whethertheir corporations political speechadvances the corporations interest inmaking profits, and citizens can seewhether elected officials are in thepocket of so-called moneyed interests.540 U. S., at 259 (opinion of SCALIA,J.); see MCFL, supra, at 261. The First

Amendment protects political speech;and disclosure permits citizens andshareholders to react to the speech of


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corporate entities in a proper way. Thistransparency enables the electorate tomake informed decisions and giveproper weight to different speakers andmessages. Id.

In our First Amendment tradition, secrecy is theexception, transparency is the constitutional rule.

IV. In the Campaign Finance Context, This CourtHas Required a High Burden of Proof toWarrant an Exemption from Disclosure. Although the issue is not properly before the

Court,10 the Petitioners broadly claim that a blanketexemption from disclosure is warranted for allintimidated groups based on proof of intimidationagainst supporters of traditional marriage inCalifornia. See Pet. Br. at 33-34. By making thisbroad claim without regard for whether suchdisclosure requirements occur in the special contextof campaign finance -- however, Petitioners ignorethe special interests underlying campaign financedisclosure laws, as explained above.

The United States Constitution embodies theprinciple that debate on public issues should beuninhibited, robust, and wide-open. New YorkTimes Co. v. Sullivan, 376 U.S. 254, 270 (1964); seealso New York State Bd. of Elections v. Lopez

10 The Petitioners complaint has two counts -- the firstbroadly alleges that the disclosure law is unconstitutional asapplied to referendum petitions, the second alleges that thedisclosure law is unconstitutional as applied to Petitionersbecause they face a reasonable probability of harassment. Pet.

Br. That second count was not reached by either lower courtand is thus not before the Court in this appeal of thepreliminary injunction motion. Pet. Br. at 10-14.


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Torres, 552 U.S. 196, 208 (2008) (The First Amendment creates an open marketplace whereideas, most especially political ideas, may competewithout government interference.). Accordingly, asa general rule, the mere possibility of reprisal inresponse to political speech does not justify deprivingvoters of valuable information about campaign-related spending. See Buckley, 424 U.S. at 68(acknowledging that disclosure may prevent someindividuals from engaging in political activity andmay subject others to harassment or retaliation); seealso McConnell, 251 F. Supp. 2d at 247 (D.D.C.2003) (Although these groups take stands that are

controversial to segments of the public, and maybelieve that they are targeted because of thepositions they take, none has provided the Courtwith a basis for finding that their organization, andthereby their membership, faces the hardships thatthe NAACP and SWP were found to suffer by theSupreme Court.). While actual intimidation andharassment are reprehensible, and robust anti-intimidation and harassment laws can and shoulddeter and punish such conduct, cloaking politicalspending in anonymity would undermine other

values of constitutional significance. What this Courtsaid seventy years ago remains equally true today:

In the realm of religious faith, and inthat of political belief, sharp differencesarise. In both fields the tenets of oneman may seem the rankest error to hisneighbor. To persuade others to his ownpoint of view, the pleader, as we know,at times, resorts to exaggeration, to

vilification of men who have been, orare, prominent in church or state, andeven to false statement. But the people


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of this nation have ordained in the lightof history, that, in spite of theprobability of excesses and abuses,these liberties are, in the long view,essential to enlightened opinion andright conduct on the part of the citizensof a democracy.

Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).

In rare situations, however, exemption fromdisclosure may be necessary to protect the First

Amendment freedoms of particular groups or

individuals and prevent the consequent reduction inthe free circulation of ideas. Buckley v. Valeo, 424U.S. at 71. To warrant exemption, those seeking anexception must first show a reasonable probabilitythat they will face threats, harassment, orreprisals as a result of disclosure. Citizens United,Slip. Op at 54. If a reasonable probability of harm isestablished, then the Court undertakes a balancingtest to determine whether the threat to the exerciseof First Amendment rights is so serious that itoutweighs the states interest in the contested

disclosure. Buckley v. Valeo, 424 U.S. at 71; see alsoNAACP v. Alabama, 357 U.S. 449, 466 (1958). Thisinquiry is necessarily highly sensitive to the factsand circumstances of each case. See, e.g., Buckley v.Valeo, 424 U.S. at 71-74 (examining record andrefusing to apply blanket exception for minor partiesdue to myriad factors affecting whether exception isappropriate).

In the campaign finance context, because of theseveral compelling state interests implicated, thethreat to First Amendment rights must besubstantial in order to tip the balance of equities infavor of exemption. For example, in Brown v.


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Socialist Workers 74 Campaign Comm., 459 U.S. 87(1982), after reviewing an extensive record ofpervasive and extreme harassment against plaintiffSocialist Workers Party and its members, the Courtconcluded that:

[T]he District Court properly concludedthat the evidence of private andgovernment hostility toward the SWPand its members establishes areasonable probability that disclosingthe names of contributors andrecipients will subject them to threats,harassment, and reprisals. There were

numerous instances of recentharassment of the SWP both in Ohioand in other states. There was alsoconsiderable evidence of pastgovernment harassment . . . [T]heevidence suggests that hostility towardthe SWP is ingrained and likely tocontinue.

Id. at 100-101. Not surprisingly, the Court has onlyonce found cause for an exception from campaign

finance disclosure laws due to harassment. CompareBrown, 459 U.S. at 101-102 with Citizens United,Slip Op. at 54-55 (rejecting claim for exemption fromdisclosure); McConnell, 540 U.S.at 199 (refusing toexempt parties from disclosure despite theirexpressed concerns of harassment); Buckley v.Valeo, 424 U.S. at 69-74 (concluding that thesubstantial public interest in disclosure outweighsthe harm generally alleged).

Amici do not attempt to assess whether theparticular fears of reprisal alleged by Petitionershere do or do not warrant an exemption from the Actat issue today. Amici do, however, submit that if


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this Court were to issue such an exemption on thegrounds that the First Amendment protects theanonymity of petition signatures such a rulingshould not extend to the sphere of campaign financedisclosures.


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CONCLUSIONBecause we believe that a constitutional

democracy cannot deprive the electorate of the toolsand knowledge to educate itself about the forcesoperating in the political arena the most basic factsabout the funding of candidates, elections, andreferenda, we urge this Court to craft a resolution tothe dispute before it in this particular case withoutimpinging upon existing constitutional doctrineregarding disclosure laws in the sphere of money inpolitics.

Respectfully submitted,

M. Devereux ChatillonCounsel of RecordMark P. JohnsonRebecca Hughes ParkerSONNENSCHEIN NATH & ROSENTHAL LLP1221 Avenue of the AmericasNew York, NY 10020-1089(212) 768-6700

Monica YounAngela MigallyBrennan Center for Justice at NYU School of Law161 Avenue of the Americas, 12th FloorNew York, New York 10013(212) 998-6730

Counsel for Amici Curiae

17669405\V-18

doe v reed amicus brief before supreme court joined by sunlight foundation

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