Political consultants, both Republicans and Democrats, likely breathed deep sighs of relief last week when a federal appeals court blocked efforts to force Prop. 8 supporters to turn over private campaign strategy records to supporters of gay marriage.
It wasn’t the politics of the case that put the usually dueling opponents on the same side, since the Democratic consultants generally support same-sex marriage, while many of their GOP counterparts oppose it. No, this one was strictly business.
If political enemies – or even friends – could subpoena the private and often uninhibited musings that consultants put out during a hard-fought campaign, a new day was going to be looming for campaign work. And it wouldn’t be fun.
In an amicus filing in the case, the ACLU of Northern California, a longtime backer of same-sex marriage, argued that opening campaign documents for legal fishing expeditions would have a “chilling effect” on political campaigns.
“Those are precisely the kinds of documents that quintessentially should not become the subject of discovery or public disclosure because they will not so much chill as freeze the conduct of political campaigns in their tracks,” the ACLU’s court filing said.
The concern goes far beyond Prop. 8, since the court’s ruling could open the way to attempts to grab internal campaign documents in virtually any election campaign.
The anti-Prop. 8 legal team was seeking e-mails and other documents about campaign strategy, fund-raising, messaging, TV and radio ad scripts for spots that were never publicly aired and various discussions between consultants and the Prop. 8 sponsors as they tried to shape their campaign last year.
“Political advocacy and strategizing is inherently rough-and-tumble,” the court filing added. “The people charged with running those campaigns cannot do so effectively while fearing that every proposal they float, every crazy idea they shoot down, every campaign plan that ultimately is not implemented will become fodder for discovery by their campaign opponents … not to mention a blueprint for those opponents to use in future electoral battles.”
Even in last year’s anti-Prop. 8 campaign, plenty of supporters of same-sex marriage were unhappy with the decisions take by leaders of the effort against the initiative. The grumbling and complaints could moved to legal efforts if there was a way they could have got hold of the internal memos on their side.
The current case, Perry v. Hollingsworth, is an attempt to overturn California’s Prop. 8 ban on same-sex marriage by arguing that it violates the U.S. Constitution by discriminating against gays and lesbians.
Attorneys for the gay marriage supporters argued that the internal documents produced by the Prop. 8 could help prove that the campaign was, first and foremost, a homophobic effort designed to sow “discriminatory animus” toward gays and lesbians.
Despite objections from Prop. 8 supporters, U.S. District Chief Judge Vaughn Walker ordered the documents to be turned over. A three-judge panel of Ninth U.S. Circuit Court of Appeals in San Francisco stayed that order last Thursday, saying it likely violated the Constitution.
While that ruling was welcome news for political consultants, it’s just a small step in the actual litigation on same-sex marriage. Oral arguments in the case are slated to begin Jan. 11 in San Francisco, but no one expects that it will end there. It’s a battle that’s likely to move out of California into the Supreme Court of the United States.
John Wildermuth is a longtime writer on California politics.