As part of a federal lawsuit challenging the Prop 8 ban on same-sex marriage, plaintiffs have demanded that the Yes on 8 side turn over internal campaign documents. Last week, a judge approved the disclosure request. Why? The plaintiffs are alleging that the ban is discriminatory, and want to see if the Yes on 8 campaign’s records offer evidence of discriminatory attitudes.
This case — and a recent case in Washington state, involving questions of whether signatures on an anti-domestic partnership referendum petition could be made public — point to a weakness in the law on initiative and referendum campaigns: lack of disclosure. Initiative and referendum campaigns are conducted by private organizations and interest groups. But the act of sponsoring such a campaign is very much a public act — it’s the act of legislating. Legislative records should be public so voters and elected leaders are making choices based on the best available information.
What should law look like in this area? Certainly, campaigns should be able to shield some purely strategic documents — polling, focus groups, etc. — from the public during the campaign. But documents that show the process of drafting a law, and any changes to it, should be public, even during a campaign. And all documents of an initiative and referendum campaign should be public after the campaign is over. Doing this would not be easy. Even if disclosure laws were applied to initiatives, campaigns would likely respond by putting lawyers in charge and then claiming that records are shielded by attorney-client privilege. If necessary, any legislation must specifically carve out an exemption to such privilege when it comes to the drafting of legislation.
Some might point out that in California, many legislative documents are public records, but legislative records were made exempt from Prop 59, the 2004 constitutional amendment on public records. I’d argue that California’s example in this, as is so many matters of legislation and public records, is shameful. We need more openness, whether the legislative sausage is being made inside the Capitol or on the streets.