Introduction

Campaign finance laws interfere with fundamental constitutional rights.  These laws give the government the power to regulate and restrict the ability of Americans to speak out and participate in the process through which the public determines who will represent them, what laws are passed, and, overall, how their country should operate.  Because these laws frustrate the ability of individuals and groups to participate in the political process, courts have frequently struck them down as violating the First Amendment. [1]

To get a campaign finance law struck down, however, you need to file a lawsuit:  Individuals must sue the government to vindicate their rights.  To effectively file suit and pursue this important litigation, victims of these laws need lawyers, and if they cannot afford one, they will need pro bono lawyers.

The attorneys willing to provide free legal services in civil rights claims range from small, private practitioners to well-established, nationwide firms like the American Civil Liberties Union, the Alliance Defending Freedom, and the Institute for Justice.  There are even groups, like the Brennan Center for Justice, who provide free legal services in cases involving campaigns and whose goal is greater government regulation of speech.

Simply put, pro bono representation is often integral in determining the scope and constitutionality of campaign finance laws.  Without this free legal representation, many of those whose rights the government violates would be unable to defend themselves.  Indeed, IJ has identified more than 100 cases in which a public interest law firm has represented a party in a civil rights case involving a political organization.  Pro bono assistance thus plays a central role in protecting First Amendment rights, especially the rights of the political novices and political outsiders of modest means.

Those in government who implement campaign finance laws often view pro bono attorneys as a nuisance at best and, at worst, a significant barrier to their efforts to squelch political speech.  Without pro bono attorneys, campaign finance regulators could freely violate the rights of any group or individual who participates in a political campaign and who cannot afford to pay a lawyer.  It is difficult to imagine a move that would give campaign finance regulators more power, and deprive more Americans of their constitutional rights, than to restrict the ability of those involved in a campaign to access free legal help.

Perhaps this is why the Washington Public Disclosure Commission (PDC) has decided to go after not only a small group of grassroots activists who defeated the PDC in court, but also the lawyers who represented them in a constitutional challenge to a Washington campaign finance law.

In an unprecedented attempt to inoculate itself from lawsuits for violating constitutional rights, the PDC now claims that the free legal services provided to a campaign in order to vindicate First Amendment rights constitutes a “political contribution” that can be regulated and restricted by the government under campaign finance laws.  This would mean that in every case where a campaign contribution limit applies, the campaign could not receive free legal services above an amount set by the government.  In effect, this puts a cap on the ability of certain political participants to vindicate their constitutional rights.

But the threat to free speech rights does not end there.  This move also threatens the ability of every nonprofit to provide pro bono legal help to candidate campaigns because federal tax law forbids nonprofits from contributing to candidates.  It even interferes with the ability of nonprofits to represent campaigns unrelated to a candidate because federal law restricts how much time a nonprofit may spend on lobbying or ballot measures.  In other words, the PDC seeks to treat pro bono legal services in a civil rights case—cases that don’t directly involve a political campaign itself, but, rather, cases that involve important constitutional rights, such as First Amendment rights the government may be violating—as a political contribution.  This means that—unless they can afford to pay a lawyer—nonprofit organizations will no longer be able to provide such services and many suits seeking to vindicate constitutional rights will never be brought.

Although the PDC’s position is unprecedented, the threat it poses is not limited to Washington state.  The PDC relies on a definition of “contribution” in Washington law that is similar, and often identical, to definitions in the campaign finance laws of other states and in federal law.[2]  Thus, if the PDC prevails, it will set a dangerous precedent that could altogether end pro bono representation by nonprofits of those engaged in important public policy reforms.  At that point, government officials will be able to squelch political speech at their whim under the umbrella of campaign regulations.  If the PDC is successful in imposing its will in this area of the law, only those who can afford to hire lawyers will be able to fight back.

But those standing up to the PDC have an important fact in their favor:  State campaign finance laws cannot trump federal civil rights, including First Amendment rights.  That is why the Recall Dale Washam campaign, its founder Robin Farris, and its private attorney Oldfield & Helsdon have become plaintiffs along with their pro bono counsel—the Institute for Justice—to challenge the PDC’s unprecedented threat to federal civil rights.  For the first time in its history, the Institute for Justice is representing itself in one of its lawsuits and filing suit as a plaintiff in one of its cases.  It is taking this unusual action because there is so much at stake here for both IJ and public interest law across the nation.

Federal Civil Rights Laws, Their Role in Vindicating First Amendment Rights, and the PDC’s Pursuit of the Recall Dale Washam Campaign

After the Civil War, Congress passed 42 U.S.C. § 1983 (“Section 1983”) to give people whose federal constitutional rights had been violated by a state or local government an opportunity to go to court and seek redress for that violation.  The specific purposes of the statute were to allow federal law to override state law, provide a remedy where state law was inadequate, and give plaintiffs access to federal courts when the state courts were unwilling, or unable, to enforce federal rights.[3]  Since the 1960’s, Section 1983 has emerged as the primary mechanism to hold state and local officials accountable for violating federal civil rights.

The key component of Congress’ effort was empowering the civil rights plaintiff to challenge state action and, if successful, recover their attorneys’ fees from the government.  In doing so, Congress specifically recognized the unique and important role that private enforcement of civil rights at no cost to the litigant plays in the furtherance of Congress’ goal that the rights and protections of the U.S. Constitution be vigorously enforced to benefit all Americans.[4]

This new litigation filed in 2013 by the Institute for Justice sprang from an earlier case that IJ filed against the PDC to strike down an unconstitutional state statute under Section 1983.  The case began when Robin Farris, a retired U.S. Naval officer who had never been politically active, saw news reports that a public official was abusing his office and the citizens he was elected to serve.  She formed The Recall Dale Washam committee to recall controversial Pierce County Assessor-Treasurer Dale Washam from office.  Robin Farris started the committee to work with other like-minded Washington citizens.

In Washington, however, anyone looking to recall a politician from office has to go to court first to prove their case.  It is a complicated process that those seeking to remove the politician can’t win unless they have lawyers.  But lawyers are expensive.  So, unless someone involved in the campaign is rich, they need volunteer legal help, which is just what two attorneys offered Robin.  That’s when Robin’s first legal run-in with the Public Disclosure Commission occurred.

Oldfield & Helsdon is a well-regarded Tacoma, Wash., law firm that offered free legal services to Robin’s committee to help the organization navigate Washington’s government-mandated pre-campaign litigation.  No sooner did they volunteer than the committee was told by the PDC that its lawyers were not allowed to volunteer more than $800 (now $900) of their time and efforts.  They even said that Oldfield & Helsdon could not refuse to be paid for its free volunteer service.

The PDC imposed an artificial government-imposed $800 limit on how much anyone could contribute to the campaign, but the services that Oldfield & Helsdon sought to contribute to Robin’s campaign were worth a lot more than $800.  This extremely low limit insulated incumbents from recalls and effectively muted the voices of those attempting to exercise their constitutional right to recall public officials.  To succeed in her fight to recall the politician, Robin had to first change the law and fight this government agency that wanted to shut her down.  And, as expensive and complicated as it is to try to recall a politician, it was even more so to stop an entire government agency that is bent on silencing speech.

In Farris v. Seabrook, filed in June 2011, IJ represented Robin Farris, the Recall Dale Washam Committee, and the law firm Oldfield & Helsdon, PLLC.  To help Robin in her fight, the Institute for Justice took her case for free.  What began as an effort to promote good government in her county has now turned into a multi-year, multi-suit struggle against Washington state’s campaign finance bureaucracy.  The district court enjoined the PDC’s enforcement of the law against the recall proponents and the PDC then appealed to the 9th U.S. Circuit Court of Appeals, which affirmed the lower court’s ruling.  When the case was remanded to the district court, the recall proponents successfully moved for judgment against the PDC.[5]

But then the agency tried to bully Robin into silence yet again.

When the recall proponents sought attorneys’ fees against the government as is permitted under federal law, in a surprising and transparently vindictive move, the PDC suddenly decided that IJ’s representation constituted an in-kind contribution to the recall campaign.  In February 2013, the PDC instructed the recall campaign to file reports that disclosed all legal services contributed to the committee, including IJ’s representation, as in-kind contributions.  The PDC claims that, under Washington law, the provision of pro bono legal assistance to a campaign constitutes an in-kind contribution to that campaign in all instances (except those that are specifically statutorily exempted), even when the lawyers provide such services solely to vindicate constitutional rights.

When the recall committee did not report this representation as a “contribution,” the PDC’s staff filed an administrative complaint against committee for failure to disclose the attorney’s fees and costs in the underlying lawsuit as contributions to committee.  While the full Commission has yet to act on the staff-generated complaint, the Commission has already adopted the position that providing pro bono or reduced cost legal assistance in a civil rights complaint constitutes an in-kind contribution.  It did so when it recently referred an organization named Family PAC (which was represented by a different firm than IJ) to the Washington Attorney General for prosecution for a similar failure to disclose such “contributions.”[6]

IJ then asked the 9th Circuit for an emergency injunction against the PDC’s actions.  Unfortunately, the 9th Circuit denied the emergency motion without explanation.  As a result, the PDC is now threatening Robin with hundreds of thousands of dollars in fines and even criminal sanctions for merely trying to vindicate and exercise her constitutional rights to speak her mind about politics and engage in the political process—bedrock rights all Americans are supposed to enjoy.

The PDC seeks to force her into stating a lie; specifically, it wants her to say the Institute for Justice’s free legal help was a “campaign contribution” to her efforts to recall Dale Washam, not free legal help meant to protect her First Amendment rights from the PDC’s abuse.  Not coincidentally, what the PDC is demanding will insulate itself against future constitutional challenges from IJ clients and the clients of other public interest law firms.

As a result of the PDC’s latest outrage against the free speech rights of Robin and her campaign, as well as her volunteer lawyers in her recall effort and her volunteer lawyers in her First Amendment civil rights challenge, Robin is now forced to file yet another lawsuit, joined this time by the Institute for Justice not only as her lawyers, but also as a plaintiff against Washington’s rogue Public Disclosure Commission.  The lawsuit seeks to vindicate the right of every individual to get free legal help when their civil rights are in jeopardy, especially when that help is needed because the government is trying to shut them up.  It also seeks to vindicate the rights of organizations like the Institute for Justice to speak up and defend individuals like Robin without having to adhere to arbitrary and abusive government-imposed limits on that advocacy.

Even though Dale Washam, the official whose actions began this legal saga, has left office, the Recall Dale Washam committee continues on in order to complete its legal challenge against the PDC’s abuse so no Washingtonians in the future will have to suffer what Robin and her colleagues have had to endure merely for exercising their civil rights.

The Consequences of Treating Legal Representation in Civil Rights Campaigns as a Political Contribution

The range of consequences of the PDC’s actions is extremely serious.  If free legal help is a “campaign contribution” and contributions are capped, that means free legal services are capped.  Once the campaign has received “too much” representation, it must either give up its challenge or face the possibility of fines or even criminal penalties.  In these situations, the PDC is proposing to explicitly stop small and less affluent campaigns from receiving legal help.

The PDC’s contention that pro bono representation of the recall committee in civil rights litigation constitutes an “in-kind” contribution to the campaign could have immediate, severe, and far-reaching consequences to IJ’s status as a tax-exempt organization.  It would also impair IJ’s ability to litigate this (and other) Section 1983 cases and would threaten the overall provision of pro bono services in federal civil rights actions involving campaigns.

Specifically, if the recall committee were to be required to report as a campaign contribution IJ’s provision of legal services and legal costs incurred, IJ would be on record as having made an extremely large donation to a political campaign under Washington law.  Besides being false, this raises serious issues under IRS rules and regulations because a nonprofit corporation may not support or oppose a candidate for any elected office; it could thus threaten IJ’s tax-exempt status.  Indeed, if the PDC follows through on its threats, every day—every minute—that IJ represents the recall committee jeopardizes its nonprofit status.  If this were to become the standard, it would severely interfere with, if not end altogether, the ability of public interest law firms to provide representation to groups involved in campaigns whose federal constitutional rights are being violated.

The harm does not stop there.  If the PDC succeeds in compelling the recall committee to report a large contribution from IJ, it would convey false information to the public that will have the effect of compelling IJ to associate with a political message that it does not support.  IJ takes no position on the recall of Dale Washam and never has.  Instead, it has represented the recall committee for the sole purpose of vindicating the organization’s rights under the First Amendment.  But if the recall committee is forced to report a “contribution” from IJ, the association of IJ with the committee’s political position will be unavoidable.  This forced political association with a client’s underlying political goals would detract from the public’s perception of IJ’s mission.  Thus, not only will the PDC’s efforts compel IJ to publicly associate with a political message it does not support, it will convey false information to the public.

The PDC’s position threatens the ability of the recall committee to use its chosen attorneys to represent it.  Robin Farris and those who represent her face crippling fines—in excess of $500,000—and even criminal penalties for the “crime” of retaining the attorneys of their choice, successfully protecting their constitutional rights, and seeking relief in the courts.[7]

This would not, however, just affect IJ and those involved in promoting the recall.  It would effectively insulate the PDC from lawsuits by groups unable to pay for lawyers.  In many cases, only those who have the financial means to hire attorneys would be able to fight back when the PDC interferes with their rights.  For anyone of more modest means, the PDC may violate their rights at its discretion and there is little these individuals could do about it.  For all the talk by campaign finance “reformers” about the need to limit “big money” and “fat cats,” efforts like the Public Disclosure Commission’s would place small campaigns at a significant disadvantage.

IJ, Robin Farris and the volunteer attorneys who came to her aid during the recall effort believe that all campaigns regardless of size should have access to vital legal assistance to vindicate their constitutional rights.  And they believe that state agencies must not be allowed to manipulate the law to   insulate themselves from legal challenge.  That is why the Institute for Justice, Robin Farris and her campaign’s volunteer attorneys are suing the PDC in Pierce County Superior Court to stop this brazen attempt to frustrate the vindication of civil rights.

Constitutional Claims

Treating pro bono civil rights litigation on behalf of a political group as campaign contributions violates the First Amendment and interferes with and frustrates the civil rights cause of action Congress created in Section 1983.

By definition, a civil rights lawsuit seeks to vindicate constitutional rights, not influence an election.[8]  The application of campaign finance statutes to speech and association in civil rights litigation makes such laws impermissibly broad in their reach.

The PDC’s actions also restrict and chill “fundamental,” highly protected speech and association—“collective activity undertaken to obtain meaningful access to the courts” and the protection of civil rights, such as free speech rights under the First Amendment.[9]  The U.S. Supreme Court has struck down prohibitions on the solicitation of clients when those laws were applied to civil rights lawsuits involving the NAACP and the ACLU because their activities were not done to resolve private differences, but rather they were a form of political expression and political association.[10]  Likewise, the representation of the Recall Dale Washam Committee and other campaigns by public interest groups, in this case the Institute for Justice, which is a named plaintiff in the case, seeks to vindicate a view of the First Amendment and freedom of association, not promote the outcome of an election.

Most significantly, however, the PDC’s actions interfere with and frustrate Section 1983.  The PDC’s policy makes it more difficult, if not impossible, for groups like the Recall Dale Washam Committee to receive free legal assistance to protect their civil rights.  Under the Supremacy Clause of the U.S. Constitution, a state law that interferes with and frustrates the substantive right of action Congress created in Section 1983—such as by delaying the ability of plaintiffs to get into court or creating special rules that burden only civil rights plaintiffs—must yield to the federal interest.[11]  Treating pro bono civil rights litigation as “in-kind contributions” under state law threatens the ability of citizens to have their day in court to protect constitutional rights and to employ counsel of their choice without cost to themselves.  This clearly frustrates the intent of Congress.

Conclusion

IJ, Robin, and Oldfield & Helsdon will not simply allow campaign finance bureaucracies to manipulate the law to interfere with efforts to hold them accountable under the Constitution.  This first-of-its-kind legal battle will do much to determine whether campaign finance bureaucrats can use broadly worded state laws to trump federal civil rights.  But IJ and its clients will not stop until they secure victory because the alternative—where the government can freely violate constitutional rights without fear of any consequence—is unacceptable in a free country.

Legal Team

The Institute for Justice’s legal team in Institute for Justice v. State is led by IJ Washington Chapter Executive Director Bill Maurer.  Maurer has led a number of free speech efforts both in Washington and across the nation, including successfully arguing the case of Arizona Freedom Club PAC v. Bennett before the U.S. Supreme Court.  Maurer is joined by IJ Attorney Paul Avelar.

Reinforcing and Expanding Free Speech

The Institute for Justice litigates in support of fundamental individual liberties, including free speech in political campaigns.  IJ has litigated, and scored significant victories on behalf of the First Amendment, in campaign finance cases throughout the nation, including:

AZ Free Enterprise Club’s Freedom Club PAC v. Bennett,[12] in which IJ successfully challenged Arizona’s so-called “Clean Elections” Act before the U.S. Supreme Court.  The law punished candidates who rejected the political welfare of public funding by burying them in red tape, giving extra money to their publicly funded opponents and setting stricter limits on how much they may raise.

SpeechNow.org v. FEC,[13] in which IJ successfully defeated regulations prohibiting individuals from donating more than $5,000 to citizen groups that want to independently speak out regarding candidates.

Sampson v. Buescher,[14] in which IJ protected six neighbors in Parker North, Colo.—who spoke out against the annexation of their neighborhood to a nearby town—from Colorado’s byzantine campaign finance laws and prosecution by their political opponents under those laws.

Broward Coalition v. Browning,[15] in which IJ succeeded in striking down Florida’s electioneering communication law, which required any organization speaking out about public issues to register and report their activities to the government.

San Juan County v. No New Gas Tax,[16] in which the IJ secured a unanimous opinion from the Washington Supreme Court halting efforts by the government to treat on-air radio commentary about an initiative campaign as “in-kind” contributions subject to regulation under state campaign finance laws.

For more information contact:

John E. KramerVice President for CommunicationsInstitute for Justice901 North Glebe Road, Suite 900Arlington, VA 22203-1854

Phone:  (703) 682-9320 ext. 205

[email protected]

[1] See, e.g., AZ Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2086 (2011), Randall v. Sorrell, 548 U.S. 230 (2006); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981); Family PAC v. McKenna, 685 F.3d 800 (9th Cir. 2012); Sampson v. Beuscher, 625 F.3d 1247 (10th Cir. 2010); Green Party of Conn. v. Garfield, 616 F.3d 213 (2d. Cir 2010); Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021, 1031-32 (9th Cir. 2009).

[2] See, e.g., Del. Code. Ann. tit. 15, § 8002; Ky. Rev. Stat. Ann. § 121.015(6)&(7); Illinois. 10 Ill. Comp. Stat. Ann. 5/9-1.4(A); N.C. Gen. Stat. § 163-278.6(6); Nev. Rev. St. § 294A.007; N.J. Stat. Ann. 19:44A-3(d)&(f); Or. Rev. Stat § 260.005(3); S.C. Code Ann. § 8-13-1300(7).

[3] Monroe v. Pape, 365 U.S. 167, 173-80 (1961).

[4] See 122 Cong. Rec. S16,252 (daily ed., Sept. 21, 1976) (statement of Sen. Kennedy); Hensley v. Eckerhart, 461 U.S. 424, 444 n. 4 (1983) (Brennan, J., concurring in part and dissenting in part).

[5] Farris v. Seabrook, 677 F.3d 858, 867 (9th Cir. 2012).

[6] Letter from Andrea McNamara Doyle, Executive Director, Washington Public Disclosure Commission, to Robert M. McKenna, Attorney General, (Oct. 26, 2012) (on file with the Institute for Justice).  See also Def.s’ Resp. to Pl.s’ Mot. Att’ys’ Fees, Family PAC v. McKenna, No. 3:09-cv-05662, at 11 (W.D. Wash. Apr. 16, 2012) (PDC pleading arguing Family PAC should not recover fees because it failed to report pro bono and reduced cost legal services as an in-kind contribution in a case brought under 42 U.S.C. § 1983).

[7] See Wash. Rev. Code § 42.17A.750 (penalties include $10,000 per violation, a penalty of $10 per day for each day reports remain delinquent, and a penalty equal to the amount of an unreported contribution or expenditure).

[8] Burnett v. Grattan, 468 U.S. 42, 55 (1984).

[9] In re Primus, 436 U.S. 412, 426 (1978) (quotation marks omitted); accord NAACP v. Button, 371 U.S. 415 (1963).

[10] Primus, 436 U.S. at 428 (quoting Button, 371 U.S. at 429, 431) (internal quotation marks omitted).

[11] Felder v. Casey, 487 U.S. 131, 151 (1988).

[12] Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, __ U.S. __, 131 S. Ct. 2806 (2011).

[14] SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010).

[15] Sampson v. Beuscher, 625 F.3d 1247 (10th Cir. 2010)

[16] Broward Coalition v. Browning, No. 4:08-cv-445, 2009 U.S. Dist. LEXIS 43925 (N.D. Fla. May 22, 2009).

[17] San Juan Cnty. v. No New Gas Tax, 160 Wash. 2d 141, 157 P.3d 831 (2007).