Democracy is about participation. It is not a spectator sport.
As such, the “direct democracy” of the referendum and initiative process can and should take place in full public view, the U.S. Supreme Court ruled Thursday in a case from our state. In an encouraging 8-1 decision, the justices said participants in such public processes have no broad right to expect that their identity be kept secret.
Writing for the majority, Chief Justice John Roberts pointed out what seemed so obvious to open-government advocates — that public disclosure of referendum and initiative petitions promotes accountability and transparency, ensuring that government is properly identifying valid signatures.
This public interest generally outweighs the fear of reprisal some signatories may harbor if their names and addresses are disclosed, the court ruled. It was such fears that prompted Arlington-based Protect Marriage Washington to seek to keep such information from Referendum 71 secret. R-71 sought to overturn the Legislature’s expansion of rights enjoyed by same-sex domestic couples. Voters upheld those rights last November.
The plaintiffs claimed that disclosing the names of those who signed R-71 petitions would violate their free-speech rights in the face of harassment threats by opponents, creating a chilling effect for future petition campaigns.
Justice Antonin Scalia, concurring with the majority, thoroughly rejected that argument.
“There are laws against threats and intimidation,” Scalia wrote, “and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
Roberts’ opinion did leave the door open for Protect Marriage Washington to argue for an exemption to disclosure, presumably if it can show threats by opponents are credible and compelling. Five justices, however, expressed doubts about such claims.
Disclosure of the R-71 signatures is mostly beside the point now, anyway. Voters have decided the policy issue behind the referendum.
The larger matter is about future ballot measures, and the state’s public records act (approved by citizen initiative) has been upheld. Strongly. The people’s interest in an open, transparent public process carried the day.
That’s an important message, and one that should apply just as clearly to the disclosure of financial donations for initiative campaigns. The public has a compelling interest in following the flow of political money.
Again, Scalia put it best:
“For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”
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