Introduction

What began in Tacoma, Wash., as a recall effort to remove a questionable politician from office has now grown into a major legal fight over campaign finance restrictions—a fight with nationwide implications for battles raging in other states over budgets, taxes and public employee union entitlements and the recall efforts that have resulted from these battles. The federal lawsuit filed on June 7, 2011, in U.S. District Court for the Western District of Washington in Tacoma by the Institute for Justice on behalf of a grassroots political activist and her volunteer attorneys spotlights how campaign finance laws unconstitutionally limit political speech and participation, and interfere with the ability of the people to bring about necessary and important political change.

As in many states, Washington voters have the power to recall elected officials who abuse their public office. To ensure that this power is not used simply to settle political scores but to remove officials only when there are serious questions regarding their fitness, the Washington Constitution and state statutes place a number of hurdles in the way of those seeking to place a recall question on the ballot. But campaign finance “reformers” have added another hurdle, one that effectively guts the ability of concerned citizens to campaign for the removal of even the most unfit officeholder.

Washington state artificially caps the amount of money any one person may contribute to the recall campaign for most elected officials to $800. This extremely low limit not only insulates incumbents from recalls, it also effectively mutes the voices of those attempting to exercise their constitutional right to recall public officials. Because of Washington’s strict restrictions, grassroots efforts to exercise control over those representing the people in public office are hobbled from the very beginning.

Worse yet, there is no justification for this law. The U.S. Supreme Court has recognized one narrow exception to the general rule that, under the First Amendment, the government cannot limit political speech or participation. That exception is that the government may cap direct contributions to candidates in order to guard against corruption or the appearance of corruption. But there is no chance of such corruption when citizens seek to recall an elected official, much less the possibility of a quid pro quo exchange of campaign cash for political favors. Indeed, it is difficult to conceive of something that would alienate an elected official more than trying to get him removed from office.

In Citizens United v. FEC, the U.S. Supreme Court recently issued a stinging indictment of campaign finance laws that burden and restrict speech: “If the First Amendment has any force, it prohibits [government] from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”[1] Political speech is not only a right, it is a profound value: “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”[2] Washington’s law strikes at the very heart of the representative government established in the Washington Constitution. It demonstrates once more that campaign finance laws often do little but insulate incumbents, make politics the sole possession of political insiders, and suppress the political activity of average Americans. This case is the next step in the line of cases that started with Citizens United and has continued with the D.C. Circuit’s decision in SpeechNow.org v. FEC, striking down a limit on contributions to independent groups. This case seeks to underscore the point that when the government limits contributions on political speech, as it does here with contributions to recall elections, it unconstitutionally limits political speech and participation.

On, June 7, 2011, the Institute for Justice filed a lawsuit in the U.S. District Court for the Western District of Washington in Tacoma on behalf of plaintiffs Robin Farris, who created the Recall Dale Washam Committee, and Oldfield & Helsdon, which volunteered free legal services to the recall committee.  They are suing the members of the Washington Public Disclosure Commission (Dave Seabrook, chair, and Barry Sehlin, Jennifer Joly, and Jim Clements, as well as the Interim Executive Director of the PDC, Doug Ellis) in their official capacities.  The caption will be Farris et al. v. Seabrook et al.

The Effort to Recall the Pierce County Assessor-Treasurer

Dale Washam was elected the Pierce County Assessor-Treasurer in November 2008. Following his election, serious questions began to circulate regarding Washam’s use of public funds to seek prosecution of his predecessor and possible retaliatory actions taken against long-time employees of the Assessor-Treasurer’s office. The issues regarding Washam that prompted the recall are discussed in detail in the Washington Supreme Court’s decision in In re Recall of Dale Washam, Docket No. 85460-2 (May 12, 2011).[3]

These allegations prompted the Tacoma News Tribune to dedicate an entire page on its website to stories about Washam and his conduct in office.[4] As the News Tribune reported:

The two-year tenure of Dale Washam, Pierce County Assessor-Treasurer, has turned a minor government office into a fountain of perpetual controversy. Since taking office, Washam’s actions have spawned five independent investigations, four claims for damages and a recall campaign.

The investigations state that Washam retaliated against his employees, wasted government resources, abused his power and hindered the inquiries. Costs of those investigations and other legal matters tied to Washam’s office now exceed $108,000. The four damage claims—preludes to lawsuits—seek a collective total of $4.25 million.[5]

Robin Farris, a retired U.S. Naval officer, was among the concerned citizens who read these reports. Farris has never been involved in politics and she is not affiliated with any political party or movement. Instead, Farris is an ordinary citizen who was motivated into action by what she saw as a public official abusing his office and the citizens he was elected to represent.

Farris decided to begin the process of attempting to recall Washam as Pierce County Assessor-Treasurer. The Washington Constitution reserves to the voters the right to recall any elected official (except judges) who has committed “malfeasance or misfeasance” while in office.[6] But in order to ensure that this right will not be used simply to settle political scores, Washington law also places several expensive roadblocks in the way of voters who wish to exercise their right of recall. Specifically, a voter must prepare charges and file them with the county auditor, who then transmits the charges to the county prosecuting attorney, who prepares a ballot synopsis. The prosecuting attorney must then certify and transmit the charges and ballot synopsis to the county superior court.[7] Then a superior court judge must determine whether or not the acts in the charge constitute malfeasance or misfeasance.[8] From there, the losing party has the right to appeal directly to the Washington Supreme Court.[9] A recall campaign thus involves substantial litigation before any traditional campaigning begins.

Farris established a political committee, Recall Dale Washam (RDW), and filed a statement of charges and a petition accusing him of official malfeasance or misfeasance. Farris and the RDW campaign received free volunteer legal services from the well-regarded Tacoma, Wash., law firm of Oldfield & Helsdon, PLLC, the principals of which shared Farris’s concerns about Washam. After a hearing, the superior court found that the acts charged were sufficient to constitute official malfeasance or misfeasance. Washam appealed and the Washington Supreme Court unanimously affirmed the lower court. Oldfield & Helsdon represented RDW at both stages. As a result of the Supreme Court’s ruling, the RDW campaign was permitted to begin collecting signatures to place the issue on the ballot this fall.

In a recall election, once litigation is over, activists have a short time period in which to collect a significant amount of signatures. For recalls of county officials, activists must collect the signatures equal to 25 percent of all the votes in the previous election for that office.[10] Then, once the recall is on ballot and an election scheduled, activists still have to campaign to educate the public about why the official should be recalled through the usual campaign activities like media advertising, yard signs, phone banks, etc. All this campaigning happens in just two months or less.[11]

In other words, a recall campaign is a significant and difficult undertaking. Even after winning in court and undertaking the campaign, however, Farris and the RDW campaign had another huge hurdle to overcome: Washington’s campaign finance laws.

How Washington’s Campaign Finance Laws Hamper Grassroots Efforts to Recall Elected Officials

Despite the high costs and short time-frames involved in a recall campaign, Washington severely restricts contributions to recall committees. Specifically, in most recall campaigns, the law limits almost every contribution to no more than $800.[12]

This $800 contribution limitation also applies to “in-kind contributions,” including any pro bono legal representation that a citizen might wish to accept during the initial litigation.[13] The Washington Public Disclosure Commission (PDC)—the group of unelected officials in charge of administering Washington’s vast regulatory regime over political speech—has concluded that this ban on volunteer legal services applies even to the required process of getting the recall through the courts and onto the ballot.[14] Thus, this law not only says people cannot contribute too much money to the recall effort, but also that if they have special skills, they cannot volunteer too much either. For people like volunteer lawyers, accountants, marketers, etc., the law stops them from effectively volunteering for a political cause they support—a long-cherished right of all Americans.

Even though ordinary Washingtonians are subject to this low $800 contribution limit, the law permits some political insiders to contribute more. Contributions from a political party or a caucus political committee are subject to a very different limitation[15] that can allow hundreds of thousands of dollars.[16]

As a result of Washington’s law and the PDC’s interpretation of it, citizens of modest means are effectively prevented from pursuing their constitutional right to remove a public official from office, regardless of how badly they are abusing their authority. By both requiring that a committee engage in substantial litigation before it can even begin to campaign and limiting the amount of pro bono legal services it can accept, Washingtonians of modest means cannot use free legal services to litigate whether the recall should be placed on the ballot as state law requires. This means that, on paper, Washingtonians have the right to recall, but they cannot exercise it unless they are wealthy. Moreover, because political parties or caucus political committees are largely exempt from the contribution limits, Washington law serves to entrench the power of political parties and other political insiders against grassroots citizen groups.

The market value of the legal services Oldfield & Helsdon provided to RDW totaled more than $20,000, far more than the $800 limit on in-kind contributions. After reading media accounts of RDW’s successful legal efforts, the PDC decided that the pro bono legal assistance provided by the firm was a violation of the $800 contribution limit. The PDC issued a Notice of Administrative Charges to the RDW committee stating that the committee “should attempt to mitigate this apparent violation by raising new money and ‘paying down’ the value of the pro bono services until they were within the $800 limit.”

But Oldfield & Helsdon refused to be paid for its free volunteer services. Instead, the firm responded to the Notice and challenged the constitutionality of the restriction on contributions to recall committees. The PDC responded by withdrawing the charge that RDW had violated the $800 limit. In the transmittal letter accompanying the amended Notice, however, the PDC stated: “The fact that PDC staff does not intend to allege a violation of [the $800 limit] should not be construed to mean that the contribution limits . . . are not applicable to the recall election. That statute, as written, is to be followed during the recall campaign.”

Moreover, the committee has potential contributors who are willing to contribute more than $800 to the effort to recall Washam. Being able to accept these contributions is crucial for the committee because it has a very short amount of time—less than half the amount of time as in an ordinary election—in which to raise money for its campaign. The restrictions on the amount of contributions and time to collect contributions work together to prevent Washingtonians from amassing the resources necessary for effective recall campaign advocacy.

There is something wrong when, in a nation that cherishes free speech and self-government, a state can block the voters’ right to self governance through the recall process, threaten individuals with prosecution for speaking out about an important political matter like a politician’s fitness for office, and stop volunteers from helping advance political causes they believe in.

So, how did we get to this point?

Campaign Finance Laws: Controlling Political Speech

Roughly 35 years ago, the U.S. Supreme Court upheld portions of the first comprehensive modern campaign finance law on the grounds that the law was necessary to prevent corruption of politicians.[17] According to the Court, campaign contributions might tempt contributors to try to purchase political favors and politicians to try to sell them.

Since then, however, there have been two major developments. First, the Court has had to repeatedly push back against overzealous “reformers” who go far beyond merely trying to prevent quid pro quo corruption. Instead, these reformers—often paired with self-interested incumbent politicians—have used these campaign finance laws to attack speech and spending that present absolutely no threat of quid pro quo corruption. These laws have reduced the amount of political speech, protected incumbents, and silenced disfavored speakers and viewpoints.

Second, the evidence of quid pro quo corruption arising from campaign contributions is scarce. Most people give money to campaigns because they support the candidates or issues, and most candidates solicit contributions because campaigning is expensive (and raising money even more difficult and time-consuming because of caps on contributions). Nevertheless, the unfounded argument persists that quid pro quo corruption is widespread and cannot be remedied by bribery laws.

But even if the corruption justification applies to contributions to a politician, it cannot possibly apply to contributions regarding ballot measures for the simple reason that, in these elections, there is no politician to corrupt. Ballot measures are merely words on a page that can’t return political favors for a contribution. Recognizing this, the Supreme Court has struck down contribution limits and other restrictions on ballot issue campaigns.[18] Similarly, the U.S. Supreme Court and U.S. Courts of Appeal have struck down restrictions on contributions to groups that speak about elections but are not affiliated with a politician.[19]

Recall campaigns are ballot propositions, just like initiatives and referenda,[20] and there is no threat of corruption from contributions to a recall committee. In fact, a recall campaign is the opposite of corruption—it alienates contributors from an elected official. Even the Ninth Circuit—one of the most receptive courts for laws restricting political speech—has begrudgingly recognized that limits on contributions to a group seeking to recall a politician from office cannot be justified by an anti-corruption purpose.[21]

Moreover, as discussed by Dr. Jeffrey Milyo of the University of Missouri in his report, Keep Out: How State Campaign Finance Laws Erect Barriers to Entry for Political Entrepreneurs, contribution limits often make it more difficult for new independent groups to launch and reduce the resources available for political advocacy. These limits thus particularly inhibit the formation of new political groups outside of, and challenging to, the status quo. Dr. Milyo’s report may be found at http://www.ij.org/images/pdf_folder/first_amendment/keep_out_political_entrepreneurs-10-10.pdf.

Despite these harms, Washington has persisted in abridging the right of donors to contribute whatever they wish to groups seeking to recall politicians from office. This has made it difficult, if not impossible, for Washingtonians to exercise their rights of free speech and recall of politicians. Once again, campaign finance laws are used to protect incumbents from challengers, frustrate grassroots political change and prevent the effective exercise of individual rights.

Constitutional Claims

The U.S. and Washington constitutions protect the right of individuals to speak out on political issues, free from unnecessary or arbitrary burdens or the threat of fines or sanctions. Washington’s campaign finance regulations directly undermine these principles. These laws abridge the right to free speech and self-governance without any legitimate reason, and result in only wealthy or politically connected Washingtonians being able to exercise their constitutional right to recall their elected officials.

Because the law permits some political insiders to engage in virtually unlimited political advocacy while denying the same right to other Washingtonians, the law violates the guarantee of equal protection of the laws contained in the Fourteenth Amendment, as well as the Washington Constitution’s ban on government grants of special privileges or immunities.

Finally, by creating artificial barriers to the people’s ability to recall an elected official, Washington’s cap on contributions to recall campaigns violates the right of recall guaranteed by the Washington Constitution.

The outcome of this case will have national implications. Voters in 19 states have the power to recall elected officials. In addition, local voters in jurisdictions in 29 states have the power of recall.[22] The use of the recall power has taken greater prominence as legislators in Wisconsin face a number of recall elections based on the contentious debate over that state’s collective bargaining law.[23] Wisconsin also limits the amount of money that one can donate to a recall campaign.[24] Even so, campaign finance “reformers” and incumbents have predictably bemoaned the amount of contributions in the process and have called for Wisconsin’s campaign finance laws to be made stricter still.[25]

The Litigants

Robin Farris is a retired U.S. Naval officer. She is not affiliated with any political party or movement and has never been involved in politics. She is simply an ordinary citizen who was motivated into action by what she saw as a public official abusing his office and the citizens he was elected to represent.

The Recall Dale Washam committee is a Washington political committee seeking to recall Pierce County Assessor-Treasurer Dale Washam from office. Robin Farris started the committee and works with other like-minded Washington citizens in order to accomplish their political goal.

Oldfield & Helsdon is a well-regarded Tacoma, Wash., law firm specializing in property transactions. Oldfield & Helsdon offered free legal services to the Recall Dale Washam committee to help the committee though Washington’s statutorily mandated pre-campaign litigation but was told by the PDC that its lawyers were not allowed to volunteer their time and efforts. Oldfield & Helsdon has refused to be paid for its free volunteer service.

The suit, entitled Farris et al. v. Seabrook et al., is in U.S. District Court for the Western District of Washington in Tacoma.  The defendants are the members of the Washington Public Disclosure Commission (Dave Seabrook, chair, and members Barry Sehlin, Jennifer Joly, and Jim Clements, as well as the Interim Executive Director of the PDC, Doug Ellis) in their official capacities.

Conclusion

This case is the next step in halting laws that restrict speech in campaigns that raise no threat of corruption or its appearance. Because there is no risk here, quite simply, the government cannot restrict political activity in a recall campaign.

Washington’s restrictions on recall committees show how caps on campaign contributions limit the ability of ordinary Americans to effectuate important and needed political change. Under this law, Washingtonians cannot use volunteer legal services to get the recall on the ballot, even though state law requires expensive litigation. Nor can Washingtonians raise large enough amounts of money—except from political insiders—in the short duration of the campaign to effectively wage a recall campaign.

This means that while Washingtonians have the right to recall, unless they are wealthy or politically connected, they cannot exercise it. The right of recall should not be limited to a select few.

Legal Team

The Institute for Justice’s legal team in Farris v. Seabrook is led by Institute for Justice Washington Chapter Executive Director Bill Maurer. Maurer has led a number of free speech efforts both in Washington and across the nation and on March 28, 2011, he argued the case of Arizona Freedom Club PAC v. Bennett to the U.S. Supreme Court. Maurer is joined by Paul Avelar, a staff attorney in the Institute’s Arizona Chapter and Jeanette Petersen, a staff attorney at the Washington Chapter.

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 country. These cases include:

AZ Free Enterprise Club’s Freedom Club PAC v. Bennett,[26] currently pending the U.S. Supreme Court, in which IJ is challenging in Arizona’s so-called “Clean Elections” Act, which punishes candidates who reject 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. It also cancels out the speech of independent groups that support traditionally funded candidates.

SpeechNow.org v. FEC,[27] 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. Beuscher,[28] 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,[29] 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,[30] 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.

Many Cultures, One Message v. Clements, [31] in which IJ is challenging Washington’s requirement that, before ordinary citizens spend even relatively minor amounts of money talking among themselves about political issues for purposes of effectuating political change, that they must register with, and provide personal information to, the government, which then proceeds to disseminate the information on the Internet.

For more information contact:

John E. Kramer

Vice President for Communications

Institute for Justice

901 North Glebe Road, Suite 900

Arlington, VA 22203-1854

Phone: (703) 682-9320 ext. 205

[email protected]

[1] Citizens United v. FEC, 130 S. Ct. 876, 904 (2010).

[2] Id. at 898.

[3]The Washington Supreme Court’s opinion can be found at http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=854602MAJ.

[4]Available at: http://www.thenewstribune.com/1546/index.html.

[5] Available at: http://www.thenewstribune.com/washam/#ixzz1O3TGqWQY

[6] Wash. Const. art. I, §§ 33, 34.

[7] Wash. Rev. Code §§ 29A.56.110, .120.

[8] Wash. Rev. Code § 29A.56.140.

[9] Wash. Rev. Code § 29A.56.270.

[10] Wash. Const. art. I, § 34; Wash. Rev. Code § 29A.56.150(2).

[11] Wash. Rev. Code § 29A.56.210.

[12] Wash. Rev. Code § 42.17.640(3).

[13] Wash. Rev. Code § 42.17.020(15)(c).

[14] PDC Interpretation 91-02 (June 25, 1991).

[15] Wash. Rev. Code § 42.17.640(5).

[16] Under Wash. Rev. Code § 42.17.640(5), contributions are capped at either $.40 or $.80 per registered voter in the relevant jurisdiction, depending on the office of the candidate to be recalled and the identity (county/legislative district level vs. state-level committee) of the group contributing.

[17] Buckley v. Valeo, 424 U.S. 1, 26-27 (1976).

[18] See Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 299 (1981); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77, 790 (1978).

[19] Citizens United v. FEC, 130 S. Ct. 876, 908-09 (2010); Long Beach Area Chamber of Commerce v. City of Long Beach, 603 F.3d 684, 696-99 (9th Cir. 2010); SpeechNow.org v. FEC, 599 F.3d 686, 694-95 (D.C. Cir. 2010).

[20] Wash. Rev. Code § 42.17.020(4).

[21] Citizens for Clean Gov’t v. City of San Diego, 474 F.3d 647, 654 (9th Cir. 2007).

[22]The states permitting recalls of state officials are Alaska, Arizona, California, Colorado, Georgia, Idaho, Illinois, Kansas, Louisiana, Michigan, Minnesota, Montana, Nevada, New Jersey, North Dakota, Oregon, Rhode Island, Washington, and Wisconsin. In addition, the District of Columbia allows recalls. In Virginia, citizens who collect sufficient signatures may subject an elected official to a recall trial. The National Conference of State Legislatures has a useful webpage regarding recall elections in the United States at http://www.ncsl.org/default.aspx?tabid=16581.

[23]http://politicalwire.com/archives/2011/05/31/wisconsin_approves_recall_elections_for_six_republicans.html.

[24]http://gab.wi.gov/sites/default/files/publication/63/ memo_re_recall_expense_funds_contrib_limits_and_r_11875.pdf.

[25]”http://www.fox11online.com/dpp/news/wisconsin/big-money-recall-donations-pouring-in-to-campaigns”>http://www.fox11online.com/dpp/news/wisconsin/big-money-recall-donations-pouring-in-to-campaigns and http://www.wisdc.org/pr050511.php

[26] Pending in the United States Supreme Court, No. 10-238.

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

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

[29] Broward Coalition v. Browning, 2009 U.S. Dist. LEXIS 43925 (N.D. Fla. May 22, 2009).

[30] San Juan County v. No New Gas Tax, 160 Wn.2d 141, 157 P.3d 831 (2007).

[31] Pending in the U.S. District Court for the Western District of Washington, No. 10-cv-05253.