[EL] Prop 8 harassment

[Scott F. Bieniek]

I am certainly a little biased because I worked for Jim as one of the lead associates on both the Prop 8 and Doe v. Reed litigation, but the court's have so far taken a very narrow view of harassment.

The Socialist Workers are, to my knowledge, the only real group that has been able to use the chill argument with any success. However, very little, if any, of their evidence is directly tied to harassment resulting from compelled public disclosure. Indeed, given their FECA exemption, they haven't filed disclosure reports in years. Rather, most of their evidence is harassment that is otherwise protected by the criminal code. For example: bomb threats to headquarters, bricks through windows, assaults on key members of the party. Yet such evidence is enough to warrant continued extensions to their exemption from filing.

I am not going to pretend that the Prop 8 folks are like the Socialist Workers. However, in the heat of the campaign, we were seeing many of the same types of things happening to Prop 8 supporters. We had statues at churches known to support Prop 8 defaced, bricks through windows, death threats directed at keys party members, etc.

To suggest that any exemption from disclosure must be supported by evidence of harassment resulting from disclosure itself renders the exemption meaningless. Nor can you expect someone that is deterred from making a contribution to come forward and be a plaintiff or witness in such a case. If they are chilled from contributing $100, they certainly are not going to assume the public face of litigation. The harassment exemption is meant to protect the $100 donor that refrains from giving because he is afraid of being targeted, not the public face of the movement.

And if you are going to take such a cramped view of the disclosure exemption, then it is time to start finding some of these disclosure thresholds unconstitutional. We index contribution limits, but nearly every disclosure threshold remains set in Nixon era dollars. I don't know what the proper level is, but I'd start by at least indexing for inflation.

-Scott Bieniek