Disclosure of Political Donor Lists OK

California political contributions of  $100 or more must be publicly reported, despite concerns by a group of donors who feared retaliation for their support of a state ban on gay marriage, a federal appeals court held Tuesday.

The 9th U.S. Circuit Court of Appeals, in a 2-1 vote, rejected an attempt to force the state to purge its donor records on the $40 million contributed to the 2008 ballot measure, Proposition 8, which banned gay marriage in the state.

The appeals rejected a state Political Reform Act of 1974 challenge to the requirement of semi-annual disclosure by political committees of individuals who contributed more than $100 to ballot initiatives. The reports include a donor’s name, address, occupation and employer.

The ruling partially upholds a decision by U.S. District Judge Morrison England in Sacramento over a facial challenge by ProtectMarriage.com, a group that supported Proposition 8. The ballot measure was invalidated by the federal court in 2010.

The ProtectMarriage group argued that prior to passage of Prop. 8, committees supporting it disclosed donor lists and allege their donors were harassed as a result of contributions.  The group contends the reporting violates free speech rights by intimidating potential donors and asked that future reporting be stopped.

The group sought an injunction to block future disclosures and require the state to purge all records of past contributions.

Judge Milan Smith wrote that the state has an interest in pre-election and post-election reporting.  He also said the disclosures in this case have been public for more than five years and republished on the Internet and in print, making it impossible for England to fashion a remedy.

The future disclosure requirements also serve to protect the integrity of the electoral process by deterring corruption and tell voters where a ballot measure may fall on the political spectrum, based on the donors it draws, he said.

Donor reporting is not merely a pre-election interest, he said.  In Prop. 8, late donations surged by $12 million in the final days of the campaign, more than the state could account for until after the election.  The state’s interests in disclosure extend past the final post-election reporting period, he said.

In dissent, Judge Clifford Wallace argued that the challenge as-applied to specific donors was not moot, even though their names have been public for years.  He argued that although the information has been disseminated, the court could fashion some type of meaningful relief.  The state could be ordered to destroy its lists and ask that copies be returned.

He also points out the disclosures are capable of repetition and thus not moot.  “Regardless of our views on the merits of the controversy, the public marketplace of ideas should not be unnecessarily burdened,” he wrote.

Joining Smith in the majority is Judge Sandra Ikuta.

Case:  ProtectMarriage.com v. Bowen, No. 09-0058




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