Prop 8 Donors Ask a Federal Court to Seal Records

Supporters of the successful gay marriage ban argue that the First Amendment prohibits California from making their donation records public because it subjects them to attacks and reprisals based on their political opinion. They are seeking an exemption from the general disclosure laws.

“This lawsuit will protect the right of all people to help support causes they agree with, without having to worry about harassment or threats.”

The lawsuit, filed Wednesday in federal court in Sacramento, asks the court to order the secretary of state’s office to remove all donations for the proposition from its Web site. The groups announced the lawsuit Thursday.

It also asks the court to relieve the two groups and “all similarly situated persons” from having to meet the state’s campaign disclosure requirements. That would include having to file a final report on Proposition 8 contributions at the end of January, as well as reports for any future campaigns the groups undertake.

There is some support for this position. Generally, contribution disclosure requirements have been upheld by the courts on the theory that they give voters more information about candidates or campaigns, deter corruption, and aid enforcement of contribution limits. The Supreme Court has held that those interests outweigh the First Amendment right against against compelled disclosure of political associations and beliefs.

However, the Court has also recognized an exemption from otherwise valid disclosure requirements on the part of someone who could show a “reasonable probability” that the compelled disclosure would result in “threats, harassment, or reprisals from either Government officials or private parties.”

The plaintiffs here will need to meet the “reasonable probability” standard. The other outstanding question is whether a majority group–that is, the winners in an election–can take advantage of the exemption. In the first case, Buckley v. Valeo, the Court suggested that the exemption is available for “minor” or “new” parties defined as those who receive less than 25% of votes at the last election. In the second case, Brown v. Socialist Workers Comm., the group suing for an exemption had no more than 60 members.

~ by Gabriel Malor on January 9, 2009.

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