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The Supreme Court returns to the subject of political campaigns today. This year, the court has already reversed a century of campaign finance law. The justices ruled that corporations can spend unlimited campaign cash. Today, the high court hears a case involving open records laws in political campaigns. The issue here is whether names on petitions must be made available to the public.
Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Not surprisingly, the flint that started this constitutional conflagration is gay rights. The Washington state legislature passed a law giving gay partners everything-but-marriage rights. Opponents of the law then sought to void the legislation by putting it on the state ballot. To get the measure to qualify as an initiative, they had to collect 120,000 signatures.
Gay rights activists then asked to see the signatures to check, they said, for fraud. Attorney General Rob McKenna says that is indeed one of the reasons the open records law was enacted in Washington and elsewhere.
Mr. ROB MCKENNA (Attorney General, Washington State): We've shown in our brief dozens of examples of where public review of petitions has uncovered mistakes, uncovered outright fraud, and, in a number of cases, has resulted in petitions being rejected and measures not even qualifying for the ballot.
TOTENBERG: The effort by gay rights groups to monitor the petition drive faltered, however, when their opponents went to court contending that petition signers were entitled to anonymity under the Constitution. A federal judge issued a broad ruling that barred the state from releasing not just the names of signers to this petition, but any petition. A federal appeals court subsequently reversed that decision, but the Supreme Court stepped in and temporarily blocked release of the names.
The end result was that the anti-gay initiative went on the ballot without the identities of petition signers being made public. The voters soundly rejected the initiative anyway, and the anything-but-marriage law went into effect.
The court case remained, however, and now the Supreme Court has before it the case testing whether petition signers are constitutionally guaranteed anonymity.
Attorney General McKenna, a Republican, defends the state open records law, contending it's not only a check on fraud, it also ensures that a legislative action to undo a law is accomplished in public.
Mr. MCKENNA: We don't legislate in secret, and other voters, other citizens, have a right to know who among them is demanding an election on a legislatively approved law.
Mr. JIM BOPP: If we accept that argument now, we're all going to have to stand in public and announce who we're voting for, and whether or not we're voting yes or no on this initiative.
TOTENBERG: Jim Bopp represents groups opposed to the gay rights law.
Mr. BOPP: That's the way tyrannical governments control and do phony elections.
TOTENBERG: But Attorney General McKenna says signing an initiative is not core political speech; that it's nothing like casting a vote. He notes that it's done in public places with many signatures on each page and viewable by other signers. And, he contends, signing a petition doesn't say much of anything about the signers' views. They could be saying they endorse the measure, or just that it should at least be on the ballot.
Mr. MCKENNA: Or they could be saying, I really want to get away from this petition-gatherer, and get into the Wal-mart that I'm visiting, so I'm going to sign it just to get past this person and get on with my business.
TOTENBERG: Jim Bopp counters by pointing to cases of harassment that he says occurred in California over the gay-marriage initiative in that state. And he contends that gay rights activists intended the same kind of harassment of petition-signers in Washington.
Mr. BOPP: They said they wanted to post them on the Internet in order to encourage people to have "uncomfortable" - and that's a quote - "uncomfortable" conversations with them. So, the whole purpose had nothing to do with the validity of their signature, and it had everything to do with harassing and intimidating these people.
TOTENBERG: Attorney General McKenna replies that only one blogger said he wanted to encourage uncomfortable conversations. And McKenna adds:
Mr. MCKENNA: I don't think that encouraging uncomfortable conversations amounts to the kind of harassment or potential intimidation that would warrant keeping these petitions out of public view. In fact, in a democracy, there are supposed to be conversations which are occurring about difficult or contentious political issues.
TOTENBERG: Even uncomfortable conversations, he says.
But Larry Stickney, who served as campaign manager for Protect Marriage Washington, which sponsored the initiative, says he was the butt of more than uncomfortable conversations.
Mr. LARRY STICKNEY (Campaign Manager, Protect Marriage Washington): It seemed like a blood sport for the other side. Any form of communication that could reach our home was, you know, including, you know, email, telephone, letters -we were the recipients of obscenities and threats and Internet harassment. I'm talking about an attitude of total war here.
TOTENBERG: Stickney says he was so worried about his family's safety that he had them sleep in the interior rooms of the house.
Attorney General McKenna replies that if somebody is really taking threatening action, that's a crime. And McKenna's says a sheriff's investigation in Stickney's case, while it produced no evidence that a criminal act had taken place, did seem to calm things down a bit.
Gay rights activist Anne Levinson, a former judge, says that efforts by Stickney and other leaders to keep their names secret seems, to her, beside the point.
Ms. ANNE LEVINSON: Some of the names that they were trying to keep from being disclosed were the very people who proposed these measures and who were out debating me across the state on televised debates. So, they were public figures already, by their own choosing.
TOTENBERG: Attorney General McKenna does concede that in some narrow circumstances, the names of petition-signers should be kept secret. But, he says, the standard should be high, requiring proof of a large number of actual threats, intimidation and harassment. And in this case, he says,
Mr. MCKENNA: They have presented, really, no evidence of that.
TOTENBERG: Jim Bopp concedes the point, but contends things would have been much worse if the courts had not stepped in to bar disclosing the list of petition-signers.
Bopp is a leading figure in opposing many existing campaign regulations. He was the lawyer who first went to court to challenge the ban on corporate spending, and he's fighting campaign finance disclosure provisions across the country. So, many of his opponents see this case as a kind of stalking horse for a broader attack on disclosure requirements. Gay rights activist Anne Levinson.
Ms. LEVINSON: They have embarked upon a systemic effort to shroud their involvement in campaigns and in lobbying and in any other way, by trying to challenge, not only public records acts, but names of contributors or any information that might allow the public to see the sources and the magnitude of money they're spending.
TOTENBERG: Jim Bopp doesn't dispute that he favors anonymous speech, contending that it encourages more speech.
Mr. BOPP: Of course you are entitled to anonymity. In fact, the most important document ever prepared in the history of our country, the Federalist Papers, which were used to explain and justify the adoption of the Constitution of the United States, was all done anonymously.
TOTENBERG: A decision in the case is expected by summer.
Nina Totenberg, NPR News, Washington.
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