En Banc 9th Circuit Questions Initiative Secrecy

PASADENA, Calif. (CN) - A fight for anonymity when collecting signatures for ballot initiatives had James Bopp, the prominent conservative attorney behind the hallmark of campaign-finance cases, butting heads with the en banc 9th Circuit at a Tuesday hearing.

Bopp, who is also known as The Big Bopper, worked as a legal adviser to the plaintiffs in Citizens United v. Federal Election Commission, a case that led the U.S. Supreme Court in 2010 to find that corporations and unions have a right to donate money either for or against political candidates since independent political spending is a form of constitutionally protected speech.

Bopp found himself before the 9th Circuit on Tuesday over a rule that the City Council of Chula Vista, a community in southern San Diego, had used the rule to reject a petition for a local ballot measure that would prohibit its public agencies from entering into union-only building contracts.

Chula Vista Citizens for Jobs and Fair Competition, the Associated Builders and Contractors of San Diego, and two individuals claimed in their complaint that the city's "elector requirement," which excludes non-natural persons from being proponents and is also in the California Elections Code, violates the First Amendment.

They also challenged a rule requiring voter-proponents of ballot measures to put their names on petitions circulated among the public.

U.S. District Judge Roger Benitez upheld both laws, finding that the "initiative power belongs to people," and that anonymity went against the state's interest in fair elections.

A three-judge panel of the 9th Circuit disagreed on one point , saying Benitez shoul have enjoined the proponent-disclosure requirement, but the federal appeals court vacated that holding this October in favor of a rehearing en banc.

A large faction of the 11-judge panel seemed skeptical about giving anonymity to those collecting the signatures of voters on petitions, as proponents are given "quasi-legislative" authority to decide what to do with the petitions after the signatures are gathered.

"I want to ask what sounds like a ridiculous question, but I'd be interested in your answer to it," Judge William Fletcher said. "Does a corporation have a constitutional right to be elected as a state legislator or a member of the city council?

"No," Bopp answered.

"Why not?"

"Because they're not a natural person."

"Say more," Fletcher said. "Why is that the difference? Because essentially we have the same problem here. These people, the proponents, are engaged in at least a quasi-legislative act. So if you're saying a corporation does not have the right to be a legislator, I'm asking why does a corporation have a right to engage in a quasi-legislative act."

Bopp argued that his clients simply want to exercise their "First Amendment rights not to be compelled to provide information in a political speech."

"But aren't they really acting for a vote to make them a type of legislator in California?" Judge Susan Graber interrupted. In June, Graber dissented in favor of Chula Vista's compelled-disclosure rule.

"When you are essentially running for office, which this is analogous to, you can't do that anonymously," the judge continued. "Why is it OK to be anonymous when you are essentially asking to become in charge of legislation?"

Bopp said the argument being presented to the voter may be "distorted" by revealing the proponent's name on a petition.

"Distorted or made clear?" Judge Graber interjected.

"Hey how about this," Bopp continued without answering Graber. "How about the Republicans take over the Legislature here."

"Bad idea," Judge Stephen Reinhardt said.

"There may be some disagreement about that, but go on," said the conservative Judge N. Randy Smith.

Bopp laughed, then went on. "They love the death penalty and are hostile to school bonds initiatives. So they pass a statute that says, using the same argument you're all using, that you have to put in the petition the names of all the school board members because they exercise the government power to spend this money."

"Except that's the content of the initiative or the law," Graber said. "This isn't about that."

"But the point is, this is compelled disclosure," Bopp said. "I have a cellphone right here, and it has Google on it. And somebody standing right here with a petition, I can find that information out right then and there.

"What about me? I don't have a smart phone," Graber said. "Not all voters do."

"Then all you have to do is wait a second, you don't forfeit your right to not sign."

"We don't wait a second in the Safeway parking lot," Judge M. Margaret McKeown said. "I don't think you'd want to rest your case on an unrealistic envisioning of how this actually happens on the ground."

Deputy Attorney General of California George Waters admitted during his argument that the First Amendment does apply in this case. "I would love as an advocate to say this is not expressive activity and the First Amendment doesn't apply," Waters said. "But I've taken a position on paper and I won't back down from it. This is expressive activity. California wants the signers to know who the proponents of an initiative are when they sign it."

The burden on the proponents is, however, minute, Waters added.

Fletcher said: "I hesitate to interject this note of what I think is political reality. There's a fair amount of artificiality on both sides. We all know that any initiative can get on the ballot if there's enough money to pay the people to stand out in the Safeway parking lot, and we all know that people sign these 99 percent of the time without even glancing at who the proponents are. I think it makes the argument on both sides artificial."

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