CA Law Naming Prop. 8 Supporters Upheld

     (CN) – Gay marriage opponents cannot escape California’s campaign-contribution reporting rules, and the state need not purge the groups’ past reports, the 9th Circuit ruled Tuesday., the National Organization for Marriage and other groups that supported the passage California’s Proposition 8 challenged the state’s campaign-disclosure requirements after their initial victory in 2008.
     Claiming that their members had been harassed for their support of the issue, the groups argued that California’s Political Reform Act of 1974 was unconstitutional on its face and as applied to them. The law requires political committees to disclose, among other things, the identities, addresses, occupations and employers of supporters who give more than $100.
     The groups sought injunctions that would free them from the law’s requirements and require the state to purge all its records of their past disclosures.
     U.S. District Judge Morrison England in Sacramento ruled for the state, and a somewhat-divided three-judge appellate panel affirmed Tuesday.
     “Both the Supreme Court and our court have rejected facial challenges to contribution disclosure requirements in several cases, holding that these substantial interests outweigh the modest burdens that the challenged disclosures impose on First Amendment rights,” Judge Milan Smith wrote for the majority in San Francisco.
     The groups had argued that law illegally required reporting even after the conclusion of the election, after the state no longer had an interest in an “informed electorate.”
     Noting that some 40 percent of the groups’ contributions related to Prop. 8 – more than $12 million – had come “between the final pre-election reporting deadline and election day,” Smith said that, “without such reporting requirements, donors could undermine the state’s interests in disclosure by donating only once the final pre-election reporting deadline has passed.”
     The law is also constitutional as applied, the panel found, because the information at issue has already been widely available on the Internet for five years. The panel likewise refused to consider an argument that the groups planned to challenge gay marriage in the future and thus should be free from reporting requirements. Such a claim for “forward-looking relief is not ripe for judicial review,” the panel found.
     Writing in partial dissent, Judge J. Clifford Wallace argued that the majority had got the as-applied challenge wrong.
     The appeals panel could have ordered the state to purge all the groups’ records based on the 1992 decision Church of Scientology of California v. United States, he said.
     “The fact that records may have been ‘widely available’ on the Internet is not relevant to the inquiry mandated by Church of Scientology,” Wallace wrote, adding that the real question is whether the court could fix an injury caused by “‘government’s continued possession’ of records, where that possession is an ‘affront’ to the citizen’s privacy.”
     Prop. 8 amended the California Constitution to define a valid marriage as a union between a man and a woman. It was later struck down by the U.S. Supreme Court.
     The Center for Constitutional Jurisprudence’s John Eastman represented the plaintiffs.
     He said in an interview on Tuesday that he was actually encouraged by the ruling because it did not deny the groups’ claims on their merits.
     That bodes well for the groups’ challenges to similar disclosure rules in other jurisdictions, Eastman added.
     “We’ve got people that have been shot at,” he said. “We easily meet the Supreme Court’s standard for exemption from disclosure laws, and this court seems to recognize that.”
     Eastman cited the majority’s finding that the case might have ended differently had the plaintiffs appealed the denial of a preliminary injunction in 2009 – before the challenged information was so widely disseminated.
     “I think the opinion strongly suggest that we would have prevailed on such an effort,” Eastman said, adding that he may use the ruling in potential future challenges to gay-marriage ballot initiatives in “half a dozen other states.”
     Fair Political Practices Commission general counsel Zackery Morazzini argued for the state.
     “Disclosure of contributors to ballot measure committees is of vital importance to having an informed California electorate,” Morazzini said in a email. “The FPPC is pleased that the court upheld these important disclosure requirements today.”

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