George Will takes up one of this blog's longtime concerns: how liberal activists use disclosure requirements to intimidate people who donate to initiatives they dislike. Excerpt:
In the 1950s, Alabama tried to compel the NAACP to disclose its membership list. The U.S. Supreme Court ruled that disclosure would burden the freedoms of expression and association that the First Amendment protects.Advocates of compelled disclosure predictably invoke Louis Brandeis' axiom that sunlight is the best disinfectant. But what is the supposed infection?
The Supreme Court has held that disclosure requirements serve three government interests: They provide information about the flow of political money, they deter corruption and avoid the appearance thereof by revealing large contributions, and they facilitate enforcement of contribution limits. These pertain only to financial information in candidate elections. These cannot justify compelled disclosures regarding referendums because referendums raise no issues of officials' future performance in office -- being corruptly responsive to financial contributors. The only relevant information about referendums is in the text of the propositions.
In 1973, Washington's secretary of state ruled that signing an initiative or referendum petition is "a form of voting" and violating voters' privacy could have adverse "political ramifications" for those signing. In 2009, some advocates of disclosure plan to put signers' names on the Internet in order to force "uncomfortable" conversations.
I've pointed out in previous blog posts how the Eightmaps creeps in California ought to think about how difficult life would be for pro-same-sex-marriage donors in places like the rural South if their opponents chose to make their names public. I agree with Will: compelling disclosure of people who give to one side or the other in matters like referendums poses an intolerable burden to freedom of expression and association. If you disagree, put yourself in the position of a white NAACP member in 1950s Alabama, someone who gave money discreetly to the NAACP because you hated segregation, but were too afraid to go public because it would have threatened your livelihood, or even your life. What if there had been a public referendum on Jim Crow, and you had given money as a white person to the "overturn" side? I can tell you, as someone who has a dear white friend whose aunts had a cross burned on their lawn in the 1960s for their voter registration activity in Louisiana, that this was by no means a theoretical threat. There were no such referendums in our history, obviously, but if you grant that under those conditions donor disclosure would overburden freedom of speech and association (as it plainly would), then you must grant that there are, and always will be, cases in America, depending on time and place, where ordinary people could suffer unjustly for the causes they support financially. Keeping donor lists to causes private protects all of us, liberals and conservatives, from zealots. We ought to all support this kind of privacy protection.
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Haven't seen any exit polls yet so I don't know what the motivators were (the economy, equality issues, or something else), but Hoffman lost NY-23 tonight. With Owen's victory tonight, the seat goes Democratic for the first time in 100 years.
In Washington State, voters today approved the domestic partnership referendum giving gay couples the same legal rights as married straight couples. In Maine, gay marriage supporters appear to have lost. In NY-23, the Democrat won, the social and fiscal conservative lost.
Andrew Sullivan notes tonight, “from the perspective of just a decade ago, to have an even split on this question in a voter referendum is a huge shift in the culture. In Maine, where the Catholic church did all it could to prevent gays from having civil rights in a very Catholic and rural state, gays do have equality but may now merely be denied the name. The process itself has helped educate and enlighten and deepen the debate about gay people in ways that never happened before the marriage issue came up.”
The conservative pundit Ross Douthat recently said: “If I were putting money on the future of gay marriage, I would bet on it. The secular arguments against gay marriage, when they aren't just based on bigotry or custom, tend to be abstract in ways that don't find purchase in American political discourse. I say, ‘Institutional support for reproduction,' you say, ‘I love my boyfriend and I want to marry him.' Who wins that debate? You win that debate."
Geoff G.: It's not just about gay rights or SSM. Once the precedent is set, one could be outed for any number of reasons. Maybe you would like members of PETA to show up at your door because you let it be known that you like eat meat. Or maybe some of your friendly neighbors in white sheets because you support affirmative action, or signed something that some one else interpreted to that effect.
And as long as they don't do anything illegal, I couldn't care less....If the KKK wants to drop by and discuss affirmative action, that's fine. Let them knock on my door and we can talk about it. I doubt they'll get very far, but they're welcome to try. Just leave my property if asked and don't do anything to break the law (emphasis added)
I usually avoid the gay-marriage threads, and I'm not putting forth a particular view here--just making the comment that Geoff's perspective on this is perhaps more sanguine than that of the average person. I, for one, would be very much rattled if the KKK showed up on my doorstep, as would, I think, most people (except, of course, those who sympathize with the Klan)! I would also be very much fearful that they might not leave my property or refrain from breaking the law.
In an earlier post, Geoff says, "You forget that we have lived with precisely that threat [of retaliation, job loss, violence, etc.] for decades, not because of political action that we took but simply for who we are." Perhaps this is where people are not understanding each other here. Gays (and members of other groups which have been despised or mistreated) have indeed lived with such threats for years and have become, perhaps, inured to them; thus, one more possibility of threat, say, by supporting a gay-rights intiative, isn't that much more on top of the already existing threats. On the other hand, for people who have not experienced a constant, life-long threat, such a possibilty is indeed fearful. It's like a soldier in a combat zone vs. a civilian--the former may have got used to the sound of gunfire and near misses, whereas a single gun-shot on a typical day would freak most of us completely out!
I think that this difference in perspective is one reason why communication on the disclosure issue is difficult--the experiences of the two sides are just too different.
O readers of History, answer me this, if you can: What was the price paid for the liberties we are debating here in this thread?
I really couldn't care less about the what-if complaints. I care just as little about citations of bullying tactics past. We have classes of people (a slowly changing short list of classes, as the decades roll on) who are denied the very rights and liberties the rest of us enjoy, and they are fighting the same fight as the founders.
... now, all posturing and pomposity aside, the simple fact is that we live in an open society. This means that along side the rights and liberties we enjoy, are those who would take those away from us either retail (individual crime) or wholesale (Patriot Act, etc.) Only cowards expose their butts and bend over, and I have no interest or intention of fighting the fight on their behalf.
So, complain all you like about harassment and intimidation vs. the privacy of individual political actions. If you choose to not act because of fear, you get nothing but my contempt. You want to be protected from the consequences of your political actions, you just became unqualified for citizenship.
Nothing is free. Sometimes the price is dear.
Klan member bashing was rather rare in the 1950s south, but my grandmother, before her marriage, worked as secretary for an attorney in Tennessee whose second floor office was visited by an out-of-uniform Klansman who dropped by to TELL him what his annual contribution that year would be. The attorney came around from behind his desk, picked the Klansman up, and threw him down the stairs. Now that, unquestionably, is not a "private act," in the sense that the Klan would know exactly who made known his opinion of their presence in the community. It showed a good deal more courage, in the 1920s, than signing a petition and then whining about someone noticing. On the other hand, Klan bashing of the NAACP was a very real event in the 1950s south, partly because the Klan was tightly interwoven with the machinery of government and the local police.
Petitions to put a person or proposition on the ballot do have to be reviewed and verified. But, if I sign a petition for, e.g., a proposition to expand the definition of marriage to include same sex couples, and my neighbors are a mix of Tridentine Roman Catholics who deny that Hitler persecuted Jews, and Evangelical Protestants who have pictures on their walls of the guys who murdered Matthew Shepherd, it is no business of the county clerk's office to provide copies of the petition to the local Eric Rudolph Appreciation Society, so they can knock on all my neighbors' doors and let them know what I signed, carefully leaving to implication what the neighbors might want to do about it.
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