A Terre Haute lawyer made his sixth argument before the nation’s highest court April 28, and he describes the hour-long
experience to be the most intense of those he’s had before the Supreme Court of the United States.
Now, justices are deciding the case that could ultimately change campaign-finance disclosure rules nationally and could give attorney James Bopp Jr. his next win in a larger battle against broad campaign-finance reform. The veteran attorney with Bopp Coleson & Bostrom said he expects the decision to be a close one that – like he always finds to be the case – is hard to predict ahead of time.
“I think it went well, and there were justices on each side who closely questioned us both pretty actively,”
he said. “This was the most intense of them all, and was a real challenge and really a lot of fun.”
During the argument, Bopp faced off against the state of Washington Attorney General’s Office in the case of John Doe #1, et al. v. Sam Reed, Washington Secretary of State, et al., No. 09-559. The issue is whether the state’s public-records disclosure law violates the First Amendment privacy rights of voters who signed petitions to launch a referendum aimed at overturning a law allowing same-sex domestic partnerships.
Arguing for the conservative group Protect Marriage Washington that brought the suit, Bopp is arguing that those names should remain private. This case is one of several Bopp is handling nationally on the broader scope of campaign-finance rules, and the outcome could play into how contributors are allowed to donate to election campaigns and get involved in political issues.
The case stems from a 2009 referendum on a Washington state law that expanded the rights of registered domestic partners. Referendum 71 resulted from a petition drive by Protect Marriage Washington and other groups seeking to repeal the law. It was unsuccessful. After the petitions were submitted to the state for verification, several supporters of the law sought the names and addresses of the signers; one organization indicated it would put the names on the Internet. But the law’s opponents moved to bar release of the information, which was available under Washington’s Public Records Act. They claimed identification of the petition signers violated the signers’ First Amendment right to privacy in political speech and association.
A District judge issued a preliminary injunction, but the 9th Circuit Court of Appeals reversed. In October, SCOTUS blocked the release of the signers’ names pending a decision in this case.
In preparing for the arguments, Bopp was looking forward to arguing in front of the current nine justices, including Justice Sonya Sotomayor who was appointed to the bench last year. He said she asked four or five questions and seemed well prepared, as all of the justices were. The last case he argued before the court was the 2007-decided case of Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), in which the justices held that issue-specific ads may not be banned in the months preceding a primary or general election.
Overall, several of the justices grilled Bopp on the broader role of the public having the ability to know who’s involved in the process and being able to legitimately question those who are for or against an issue. Bopp faced several pointed questions from the court, the transcript shows.
Bopp said he was particularly surprised by how intensely Justice Antonin Scalia seemed to feel about the issue. Justice Scalia expressed strong views that disclosure doesn’t implicate any constitutional interest. At one point, the justice said to Bopp that the First Amendment doesn’t protect people from civic discourse or “nasty phone calls” when they participate in the process.
“In the first century of our existence, even voting was public. ... The fact is that running a democracy takes a certain amount of civic courage,” Justice Scalia said. “You are asking us to enter into a whole new field where we have never gone before.”
After a later exchange with Bopp, Justice Scalia noted the sensitive nature of this issue and noted, “You can’t run a democracy this way, with everybody being afraid of having his political positions known.”
Bopp was also surprised that Justice Stephen Breyer only asked one question, and that it was asked of the solicitor general and seemed to be in Bopp’s favor, the Indiana attorney said.
According to the argument transcript, Justice Samuel Alito seemed to favor the view that the First Amendment would broadly prohibit all such disclosures. Early on, Chief Justice John Roberts framed the case as only a “facial attack” and the other justices seemed clear throughout the hour that many instances would exist where disclosure would not implicate the harassment-related concerns that Bopp brought up.
As far as predicting an outcome, Bopp would only say that he expects a close decision but going any further could prove hazardous.
“You just never know how it will turn out,” he said.
Justices are expected to issue a decision by the time the term ends in June.
That case fits into a larger battle against campaign finance reform that Bopp is waging. Bopp told Indiana Lawyer in March that he’s basically on a mission to eliminate laws regulating money in politics by using the First Amendment, and through the years he’s had some success in various cases, such as Citizens United v. FEC, 558 U.S. ____ (2010) that held corporations have a First Amendment right to make independent expenditures to political campaigns and those contributions can’t be limited.
But not everyone wants that vision as Bopp sees it.
Within a day of the Doe v. Reed arguments, Indiana’s Democratic Sen. Evan Bayh and three of his colleagues in the U.S. Senate unveiled a campaign-finance bill aimed at reducing the influence of special interests on the heels of the Citizens United decision.
Known as the DISCLOSE Act, the legislation would partly restore those limits overturned by SCOTUS in Citizens United and bar foreign-controlled corporations, government contractors, and companies receiving government assistance from making political expenditures. It would also require corporations, unions, and other organizations that make contributions to disclose their donors and stand by their ads. The bill requires for the first time that corporations and advocacy groups establish easy-to-track campaign accounts and that the information be available to the public online and to shareholders in corporate filing statements. If a company doesn’t want to establish these transparent accounts, then it would have to disclose all its donors – not just those whose contributions are earmarked for political activities.
Senators hope the legislation will be passed by July 4 so that the law could take effect in time for the 2010 elections.
“The prospect of secret, unlimited, and possibly foreign piles of campaign cash flooding into our democracy is something that should alarm every American,” Bayh said in a news release. “If unlimited corporate money is allowed to pollute the political process in November, then members who are beholden to the special interests will be elected to defend those special interests.”•