Home > News and Commentary > More On The Supreme Court Ruling In Citizens United v. Federal Election Commission And The Road Ahead. Supreme Choice: Terminate Transparency, Accountability & Right To Know, or Enforce the Criminal Law?

More On The Supreme Court Ruling In Citizens United v. Federal Election Commission And The Road Ahead. Supreme Choice: Terminate Transparency, Accountability & Right To Know, or Enforce the Criminal Law?

Supreme Choice: Terminate Transparency, Accountability & Right to Know, or Enforce the Criminal Law?

Today’s editorial in the LA Times hits an issue on the head. It is the critical issue for self-government (or its potential restoration) in our time. As framed in the case now in the US Supreme Court, gay rights advocates are the bad guys – harassers and retaliators – and the solution proposed is to eliminate the public’s right to know who the anti-gay rights forces are, or to check and balance their power. The Court’s ruling will apply, as it must, to petitioners generally. Hitting the issue on the head, the LA Times said:

“{T}he remedy for that problem is enforcement of criminal laws, not the withholding of public documents. If a state acts on its commitment to transparency, it shouldn’t be thwarted by a fallacious 1st Amendment argument.”

What is the issue the LA Times hit on the head? It’s the claim made in the US Supreme Court in Doe v. Reed, by the very same lead attorney as in Citizens United, this time saying that the names of referendum petition signers should be SECRET – on the grounds of preventing potential retaliation or harassment of the signers.

Attorney James Bopp, Jr seeks to protect those that allegedly signed a referendum petition against gay rights. I say “allegedly” because the Supreme Court has already ordered the names and identities of signers held secret and so if anyone knows for sure what is on those petitions it would only be the Washington state’s Republican Secretary of State Sam Reed.

I should not have to point out that secret petitioner signers eliminate any and all checks and balances whenever the interests of the petitioners (Republicans, in this case) align with the interests of the official checking final numbers of signatures (another Republican operation). Moreover, even when interests do not align, secrecy causes massive structural damage to checks and balances, accountability and the public’s right to know.

The Washington state law that would otherwise say these STATE law signatures are public records was passed overwhelmingly by initiative. I’ve put key text from this public records law, mirrored in other states like California and West Virginia, in large type to make sure everyone can “hear” it, and not mistake it for an exercise of the right to remain silent. Among other very strong language, it says:

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”
-RCW 42.56.030

How can the people “remain in control” when advocacy groups get laws on the ballot with secret, perhaps bogus, signatures? You can expect corporate-backed laws to be accompanied by $10 million or more unlimited spending sprees per Citizens United and other cases.

Persons who sign petitions to get things on the ballot are invoking the direct-democracy Legislative capacity of the people to pass laws. It is very much like the requirement, then, that legislators have public hearings and publish their roll call votes for voters to inspect and hold accountable.

To allow such petitions for initiatives and referenda to keep identities of signers secret means that the levers of power are allowed to operate with masks on and hoods over their head. This is not the accountability planned for self-government.

Secrecy always totally defeats any possible accountability.

The protection for those actually harassed is the same protection you and I have against murder, rape, or burglary: call 9-11 and invoke the criminal laws. If that is good enough for murder, it is good enough for anyone signing a petition, to be sure. Besides, the entire notion of checks and balances and the public’s right to know is implicated with petitions, but not with ordinary crime.

The LA Times, located in California, is in one of the few states that keeps petitioners secret in most cases. California has recently been forcing voters with political buttons on to wear hospital gowns in polling place to cover up if they do not remove the button or shirt. The LA Times sees past its own state’s regulations on petitions.

This Doe v. Reed case US Supreme Court case is the intermediate step in making all campaign contributions secret (probably by putting code numbers instead of names on “disclosures”). With voters being hushed up in polling places in California and other places, an opinion in the California Court of Appeals just two weeks ago holding that poll watchers have no right to have a camera or video to document anything, and with the cases moving up to the Supreme Court arguing for principles of secret political contributions, we need to make clear the stakes here are absolutely fundamental and non-negotiable:

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.” – Revised Code Washington, RCW 42.56.030

Nevertheless, by an 8-1 vote the Supreme Court has ordered the signatures held secret pending their decision, which is not yet even docketed for oral argument. Certainly, the ballot will be finalized and perhaps the election over before the Supreme Court decides. This means that the Supreme Court is erring on the side of secrecy. Besides, under Supreme Court rules a stay may not be issued at all unless it is likely the requesting party is going to win when all is said and done. Consequently, the sole vote of Clarence Thomas for no disclosure in Citizens United is not a good predictor of where the principles of Citizens United and the attorney common to both Citizens United and Doe v. Reed are taking us. It is a railroad to secret campaign money and secret petitions.

Secrecy means no accountability. Who can possibly be in favor of unaccountable government or unaccountable exercises of power over us?

Instead of having our right to remain silent read TO us, we should read OUR rights TO THEM. See the statement of democracy and self-government that is the same philosophy nationwide as it is in Washington State, that the Supreme Court is poised to strike down as applied to exercising the power to get things on the ballot. RCW 42.56.030.

“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”

If the Supreme Court kills the above policy of the people of the State of Washington, what has to stop lawmakers claiming fear of harassment from keeping their votes secret? What’s to stop the destruction of the right to know and all accountability? Accountability always feels like harassment or retaliation, especially when power abuses or ignores important rights. That’s exactly where they want the secrecy.

Paul Lehto, Juris Doctor

Original

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