By Paul Avelar
Americans have the right to sue the government when it violates their constitutional rights. And lawyers have the right to represent those people in court for free. Unfortunately, both of those rights were recently under attack in Washington state.
On February 20, IJ won the first round in a first-of-its-kind case when the Superior Court for Pierce County ruled that the government could not call IJ’s legal representation a “campaign contribution” that could be regulated and limited by the government.
Since 2011, IJ has represented a small grassroots group founded by retired Navy officer Robin Farris called Recall Dale Washam (RDW) in a civil rights lawsuit challenging a Washington law that limited contributions to recall campaigns to $800, later raised to $950. Like all campaign-finance laws, this one restricts the ability of Americans to participate in the political process. Our goal was to overturn this unconstitutional limit on free speech. We accomplished that mission for RDW, all the while remaining neutral about the group’s underlying purpose of recalling an elected official.
But this did not matter to the Washington agency in charge of regulating campaign speech—the Public Disclosure Commission (PDC)—which decided to call our work a campaign contribution to RDW. Calling our work a campaign contribution caused two immediate problems. First, RDW faced hundreds of thousands of dollars in fines from the PDC for not including IJ’s work in RDW’s campaign-finance reports. Second, it put IJ in grave danger. IJ is a tax-exempt charitable organization; we do not charge clients for our services and instead accept tax-deductible donations. In order to do so, we cannot participate in candidate elections. If we were on record for making such a large campaign contribution, our very existence as a charitable organization could be called into question. So, for the first time in IJ’s history, we represented ourselves in a lawsuit to take on the PDC and its threat to pro bono representation in civil rights cases.
Our argument was simple: First Amendment litigation is not a “campaign contribution.” People contribute to campaigns to help get messages out to voters and to associate with a particular viewpoint. What we do is represent people in challenging unconstitutional campaign-finance laws. We do so because we want to protect the constitutional rights of everyone—not just our clients—and because we want more speech. Americans’ political speech and our work protecting that speech are at the heart of the First Amendment’s protections.
In addition to the immediate problems, treating our work as a campaign contribution created a broader, even more nefarious consequence: The PDC could limit the amount of legal help people could receive. Campaign contributions are strictly limited in Washington (and elsewhere). If free legal representation in a case to vindicate federal civil rights is treated as a contribution, then government could limit that representation as it does any other contribution. Thus, the PDC could actually prevent people from getting free legal representation in constitutional cases. IJ and other public-interest law firms like it could no longer help groups like RDW challenge campaign-finance laws. In other words, finding free legal help would be virtually impossible.
Thankfully, the First Amendment prohibits such censorship. The Superior Court agreed, vindicating the ability of lawyers and clients to work together to protect fundamental rights without the interference of government regulators. IJ will fight this case to the very end, even if the PDC appeals. We are right and, thanks to this victory, IJ will continue to fight for the First Amendment rights of all Washington speakers and of all Americans.
Paul Avelar is an IJ attorney.