Last week, the U.S. Supreme Court decided Doe v. Reed, 561 U.S. ___ (2010), a case about Washington’s Public Records Act, which mandates the public availability for inspection and copying of petitions. In something of a follow-on to the recent Citizens United decision, see supra here, an eight-justice majority ruled that, generally speaking there is no constitutional right against the public disclosure by a state government of the identities of petition signatories. See here and here. (Justice Clarence Thomas dissented in both cases, opposing disclosure.)
The case arose after a group called Protect Marriage Washington (PMW), which was organizing against a 2009 state law that expanded rights of same-sex couples, argued that the public disclosure of the names of signatories to the petition that forced a referendum vote on the act would violate their First Amendment rights. PMW’s campaign manager, Larry Stickney, feared threats similar to those against Californian supporters of Proposition 8. Mark Walsh, On the Campaign Trail: Court Weighs Arguments for Anonymity on Public Petitions, ABA Journal, June 2010, at 20. Stickney said he received threatening telephone calls and emails and moved his family to an interior bedroom in his house due to fear of harm. Id. Two websites pledged to publish the names and addresses of signatories, and supporters of the challenged law sent public records requests to PMW with the same goal. Id.
Chief Justice John Roberts’ majority opinion allowed that there may be some situations in which it is necessary to protect signatories’ anonymity and sent the case back to the trial court to determine whether this case merits exceptional treatment.
Secret-ballot voting is one of the most important electoral traditions in this country. Suffrage expansion along race, gender, and age lines was important, but to secure the vote truly and meaningfully for any eligible voter must be to require voting by secret ballot. Although outside influences of the lawful (the valued point of political campaigns, after all, is to educate and persuade voters) and unlawful (e.g., “political machines”) variety, secret ballots help ensure that votes cast are the voter’s own and curb the force of inappropriate influences. Voter intimidation through formal and informal means erodes the right to vote, and voters should not have to fear any mode of external influence, lawful or unlawful, formal or informal. Should one take the stance, perhaps extreme, to refuse to disclose one’s ballot decisions to others, even including family and friends, one would be upholding firmly the values behind the principle of secret-ballot voting.
Legislators, our representatives in government, cast two types of votes, however. As citizens, they cast the ordinary sort of votes discussed in the previous paragraph, and they should never be called to disclose or explain these votes while campaigning or serving in office. As legislators representing citizens in the governance of our democratic republic, their votes on bills and other measures in the legislature are not secret. In service of democratic ends, these votes are appropriate for public evaluation.
The plaintiffs in Reed, in signing the petition to place Referendum 71 on the ballot, appear to be more like citizens acting as legislators than citizens casting personal votes for candidates or other ballot measures. A referendum is a wresting back of the lawmaking power from the institution of elected representatives to the public. When members of the public stand in the shoes of legislators, it is appropriate that they face similar scrutiny.
While this rationale may be conceptually sensible, referendum petition signatories do not share many of the characteristics that make it important, as matters of representative democracy, that legislators’ legislative votes are public. Furthermore, the concerns about external intimidation and influence may be just as valid in petition signing as in voting, even if the stakes are lower. It may be legally satisfying (or at least, workable) to say that the state provides the referendum avenue and therefore is allowed to reasonably regulate it by requiring identity disclosure to combat fraud. Whether it is theoretically satisfying, from a position of considering a governing apparatus and its relationship to the governed is a separate question.
Life, in many ways, is a carnival, a broad array of games of chance with varying stakes. The difference is that the decision whether to play some of these games– whether to undertake the risk of loss for a chance at reward– is not voluntary. Being involved in a car crash comes to mind, although the drivers and passengers did make the choice to get into a car that day. Losing property to theft or fire is another example, although owners can take preventative measures to protect against loss by those means. Contraction of a genetic disease may be a better example, as we do not have much choice of whether or to whom to be born, as far as I recall.
To deal with risk over which we believe we have less control, we spread it across a population that shares resources for the purpose of compensating those who actually suffer a loss. This is the insurance principle, the idea of pooling resources to be paid out to the subset that suffers bad outcomes. The members of the pool know that there is a chance that they will have a bad outcome, but not all of them actually will. Because they cannot know beforehand who will suffer the harm, they all pay in advance to compensate the ones who actually do, possibly themselves.
Insurance companies often advertise their services as providing the support of “a good neighbor,” the security of being “in good hands,” or the assurance of “peace of mind.” Does the purchase of an insurance policy really reduce risk, though, or does it merely trade one type of risk for another? Many people in a risk pool will never suffer the bad outcome that triggers payment, instead spending their whole lives (or whatever length of time they continue to participate) paying into the pool, in some sense, for nothing. Ex post, after the fact, all they did was give their money away to what could most kindly be described as an inefficient charity fund. Of course, no one can know ex ante, before the fact, whether he or she will suffer the harm, which is why so many people buy insurance. What is less obvious is that the decision whether to buy insurance itself carries risk.
I am resistant to the notion of living one’s life through the constant lens of economic analysis. The concept of opportunity cost, in general terms, is a valid and meaningful consideration, however, and even if we shy away from a conscious weighing of the financial costs and benefits of everything in our lives, we undertake a subconscious experiential opportunity cost analysis all the time. Despite the advances in transportation technology and our supposed ability to multitask, we can only be in one place at one time, doing (for the most part) one thing at one time. The limitations of our reality force us to make choices. The choice to do one thing necessarily forecloses other options.
Like it or not, the stability and security so many seek may be elusive in a world of opportunity costs. No matter how you toss the dice, we are all gambling men and women, constantly betting on one alternative over another with the choices we make. Even in an area ostensibly about security and comfort– insurance– both sides are gambling: policyholders are betting that they will suffer the insured-against harm, and the issuers are betting that they won’t.
Some readers may find themselves dismissive of this account, unsurprised about and cognizant of the risky nature of the world. With every rambling step through life another wager made with imperfect information, though, is it better to press on, attempting to gain a complete set of information; surrender to the flow, in full acknowledgement of the unattainability of omniscience; or take some middle or alternate path?
Robert Hunter, Jerry Garcia & Bill Kreutzmann, Deal, Garcia (Jan. 1972).
How are you holding your cards?