Arlington, Va.—When Robin Farris, a political novice and retired naval officer, began an effort to recall an elected official against whom serious charges had been leveled, she had no idea that this effort would result in four years of fighting the government as it sought to enforce laws designed to silence her political speech and participation. These four years featured persistent court appearances, two government complaints, two civil rights cases, two trips to the 9th U.S. Circuit Court of Appeals, thousands of hours of attorney time, and the constant threat of massive fines—all because of confusing and unconstitutional state laws regulating political activity.
“These cases demonstrate why laws allowing the government to regulate political speech and association drive ordinary Americans out of the political process, leaving politics to only those with enough connections or money to have an army of lawyers at their side,” said Bill Maurer, the managing attorney for the Washington office of the Institute for Justice, which represented Farris.
It all began when Farris watched with dismay as media stories started coming out about how Pierce County Assessor-Treasurer Dale Washam was running his office. Upset with what she saw as Washam’s completely dysfunctional management, for the first time in her life she decided to get involved in politics, and in October 2010 she organized a campaign to recall Washam from office.
To undertake this recall effort, however, Washington law requires that she first go through a complicated process in Washington courts to justify her campaign. To assist Farris with this state-mandated litigation, lawyers Jeffrey Helsdon and Thomas Oldfield of the well-regarded Tacoma, Wash., law firm Oldfield & Helsdon, PLLC, volunteered their help.
But according to the Washington Public Disclosure Commission—the agency in charge of administering Washington’s vast regulatory scheme over political speech—it was illegal for Oldfield & Helsdon to help Farris’s campaign. Washington severely restricts contributions to recall committees. This limit also applies to “in-kind contributions,” including any pro bono legal representation that a citizen might wish to accept during the initial litigation, such as the volunteered help that Oldfield & Helsdon provided. Because legal services ordinarily cost a lot, the value of Oldfield & Helsdon’s volunteered “contribution” exceeded state limits. In February 2011, the PDC told Farris to “repay” Oldfield & Helsdon approximately $20,000—or be fined.
The Institute for Justice then stepped in to help Farris and Oldfield & Helsdon protect their rights by representing them, for free, in a civil rights lawsuit.
This lawsuit was successful, and between 2011 and 2014 the U.S. District Court for the Western District of Washington and the 9th U.S. Circuit Court of Appeals issued a series of opinions finding that Farris’s and Oldfield & Helsdon’s rights were violated.
But as she was prevailing in court, the PDC issued another complaint. It claimed that the Institute for Justice’s free legal help in the civil rights lawsuit was a political contribution that was never disclosed and threatened fines of more than $300,000. Farris had not disclosed that free legal help because neither the PDC, nor any other government agency in the country, had ever before claimed free legal help to protect civil rights was a political contribution.
The PDC’s claim meant that no lawyer would be able to volunteer more than a tiny bit—maybe two hours—of his or her time to protect civil rights in cases where a contribution cap applied. This reading also threatened groups like the Institute for Justice and the ACLU, nonprofit organizations that volunteer their time to protect civil rights, but are absolutely prohibited from making political contributions to candidates and severely limited in their ability to work with other political groups.
The PDC’s actions again led the Institute for Justice to represent Farris, Oldfield & Helsdon, and—for the first time in its history—itself, in yet another civil rights lawsuit.
On February 20, 2015, Farris won again when the Superior Court for Pierce County, Wash., ruled that free legal services to protect constitutional rights “are not a campaign contribution.” Washington state recently agreed it would not appeal this ruling. This means that, for the first time in more than four years, Robin Farris is not facing the threat of prosecution just for engaging in ordinary grassroots political activity.
Paul Avelar, an IJ attorney, noted, “These laws erect a ‘DANGER: KEEP OUT’ sign for Washingtonians wishing to participate in politics. For the average Washingtonian, seeing the complicated mess that is Washington’s extremely broad campaign finance scheme means that participating in elections creates a real possibility of complaints, years of litigation, and large fines. Unfortunately, many will decide that the smarter course of action is to stay out of politics altogether.”
“Unfortunately, Washington’s laws are not unique,” Maurer said. “In this country, political speech has been a heavily regulated activity for years and is becoming more so each day. This complexity, and the risk of prosecution and fines if you do something incorrectly, drives ordinary citizens from the political playing field, deprives voters of important information, and protects incumbents from meaningful competition. This is exactly what the pro-regulation forces say they are fighting, yet each law makes it harder for anybody but the most powerful and well-funded to speak. People like Robin should not have to spend four years in court just because she wanted to improve her community by participating in politics. Robin was doing nothing more than engaging in the kind of political speech every American should be encouraged to exercise.”
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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9320 ext. 205.]