The Doe v. Reed transcript is out, and consensus is that the hearing went well for open government proponents.
Attorney General Rob McKenna and Secretary of State Sam Reed emerged from the U.S. Supreme Court today optimistic that the high court will allow Washington and other states to treat initiative and referendum petitions as releasable public records.
McKenna, making his third appearance before the court, and Reed, the state’s chief elections officer, both said they counted a majority of the justices who seemed sympathetic to Washington’s argument that the vote-approved Public Records Act requires release of petitions to those who make a request and pay the duplication cost. They said the court didn’t seem inclined to pull down all disclosure laws.
“My team and I think it went well,” McKenna said in a joint news conference with Reed after the one-hour hearing before a packed court, including Justice John Paul Stevens hearing his last case. Reed concurred, saying McKenna did a persuasive job and that he’s optimistic of a win, which would be nationally significant.
Of course we won’t know until we know; the Court’s ruling is expected in late June.
The Stranger‘s Jake Blumgart was present for the hearing and has posted a summary well worth your time. Of particular interest is this observation:
Justice Antonin Scalia, a hard-right Reagan appointee, cut Bopp off midway through his third sentence-an act that immediately indicated the normal left/right battle lines wouldn’t be strictly adhered to in this case. (Scalia frequently speaks first in oral arguments, and his statements are often seen as an indicator of the direction the court’s conservative bloc is leaning.)
James Bopp is the lawyer for the John Does and Protect Marriage Washington (PMW). His remarks opened the hearing.
After reading the transcripts as well as other preliminary summaries, consensus is that Justice Scalia appeared to be quite the champion of open government and seemed to delight in showing skepticism about Bopp’s reliance on the notion that criticism should be equated with harassment and intimidation. In addition, the justices seemed to agree with Attorney General McKenna, who was defending Washington’s public records laws, that signing an initiative petition is a legislative act, not a vote.
“At the post-argument press conference Bopp seemed slightly shaken”, observes Blumgarten.
Note that although Bopp ardently tried in his court briefs, press statements and arguments today to throw The Scary GaysTM card, the question of alleged future harassment of Referendum 71 petition signers wasn’t even before the court today because the lower courts never ruled on that count. The Justices today therefore very correctly refused to allow Bopp to stray into that territory, try as he might (and he did). What was before the Court today was the broad question of whether the public release of petitions is constitutional.
However, it is certainly possible that the Court could rule that generally speaking public release of petitions is constitutional, then send the case back down to the trial court so that the specific question of alleged harassment of R-71 petition signers could be adjudicated. In other words, even if the Court rules in our favor this summer, we may still be tangled in a second round of this mess for months.
Below I’ve pulled a few exchanges from the transcript that the Justices, in particular Justice Scalia had with both Mr. Bopp and Attorney General Ron McKenna.Transcript excerpts, emphasis mine.
JUSTICE GINSBURG: — signature collector can sell the names, use them for its own fundraising purposes?
MR. BOPP: What is implicit is they are associating with this group for a purpose, and that is support for, in this case, Referendum 71. And so they use those names for valid purposes.
JUSTICE SCALIA: Mr. Bopp, do you have any case in which we have held that the First Amendment applies to activity that consists of the process of legislation, of legislating or of adopting legislation?
MR. BOPP: Yes, Buckley II.
JUSTICE SCALIA: What is that?
MR. BOPP: Buckley II, you struck down the requirement that the person who is soliciting signatures self-identify.
JUSTICE SCALIA: That is — soliciting signatures is not taking part in the process of legislating.
MR. BOPP: Well –
JUSTICE SCALIA: The person who requests a referendum is taking — when there’s a certain number of signatures required to achieve it is taking part in that.
And in light of the fact that for the first century of our existence, even voting was public — you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for — the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.
You are asking us to enter into a whole new field where we have never gone before.
MR. BOPP: Well, with all due respect, you have already opined in Buckley II that the person on the other side of the clipboard is protected by the First Amendment.
JUSTICE GINSBURG: I don’t think that’s – that’s true of Buckley II. What was — what this Court said could not be done is that the solicitor could not be made to wear a badge that says “I am a paid solicitor,” but that the solicitor’s name had to be identified for the State. Certainly the solicitor -there was an affidavit, and there was the filings with whatever was the State agency.
So what was — what this Court said could not be judged was this kind of in-your-face big button that says “I am a paid solicitor,” but the solicitor’s name and address certainly had to be disclosed.
MR. BOPP: That is true. You’ve correctly described Buckley II.
JUSTICE STEVENS: Isn’t there another possible public interest? Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?
Is there public interest in encouraging debate on the underlying issue?
MR. BOPP: Well, it’s possible, but we think this information is marginal. In other words, the – it’s much more important –
JUSTICE STEVENS: Well, it does identify people who have a — a particular point of view on a public issue. And if you have the other point of view, don’t you have an interest in finding out who you would like to convince to change their minds?
MR. BOPP: Well, we — we think it’s a — a very marginal interest. The Ninth Circuit recently ruled that if you give a small contribution to an initiative there’s not — I mean, nobody cares. So why should it be publicly disclosed when it’s so marginal?
JUSTICE SCALIA: What about just — just – what about just wanting to know their names so you can criticize them?
MR. BOPP: Well –
JUSTICE SCALIA: Is — is that such a bad thing in a democracy?
MR. BOPP: Well, what is bad is not the criticism, it’s the public — it’s the government requiring you to disclose your identity and belief.
JUSTICE SCALIA: But part of the reason is so you can be out there and be responsible for the positions you have taken.
MR. BOPP: Well, then why don’t they require both sides?
JUSTICE SCALIA: So that people — people can criticize you for the position you have taken.
MR. BOPP: Then why don’t they require both sides if that was the purpose?
JUSTICE SCALIA: What do you mean, “both sides”? The other side hasn’t signed anything.
MR. BOPP: The other side –
JUSTICE SCALIA: When they sign something, they will be out there for public criticism as well.
MR. BOPP: Okay. But this is a one-way street.
JUSTICE SCALIA: Oh, this is such a touchy-feely, oh, so sensitive about — about any –
JUSTICE SCALIA: You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known.
MR. BOPP: I’m sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats.
JUSTICE SCALIA: Well, that’s bad. The threats should be moved against vigorously, but just because there can be criminal activity doesn’t mean that you — you have to eliminate a procedure that is otherwise perfectly reasonable.
GENERAL McKENNA: What we know, Justice Kennedy, is that in dozens of States around the — around the country, as recently as 2009 in Maryland, 2006 in Massachusetts, and so on, it was the — it was the public who requested ballot petitions by public records request who found significant fraud and error. This isn’t just about fraud — fraud is very important — it’s also about finding plain old mistakes which the State, Secretary of State, or auditor has missed.
That — that does happen with regularity in this country, and we cite cases in brief where error is not fraud, but errors in Washington State have been discovered by people who look at these public records. And –
JUSTICE SCALIA: Sometimes the public may not trust the Secretary of State.
GENERAL McKENNA: Yes, sir. Justice Scalia,
JUSTICE SCALIA: It — it may be an issue in which his administration has taken a particularly firm stand and the public may not trust the job that the Secretary of State does.
GENERAL McKENNA: That goes to the heart to the Public Records Act, Justice Scalia, trust but verify. The people did not leave to the State the idea that, well, we will let you know what you need to know.
JUSTICE SCALIA: Trust but verify, I like that.
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