IJ Sues the Government to Protect the Right to Sue the Government

August 1, 2013

Americans have the right to sue the government to protect their rights. And lawyers—like those at IJ—have the right to help people vindicate their rights in court. But Washington’s Public Disclosure Commission (PDC) has taken a dangerous step toward regulating those rights out of existence. That is why, for the first time in our history, the Institute for Justice is acting as a plaintiff in one of our own cases: suing Washington and the PDC to protect our right to help Americans protect their rights in court.

For more than two years, IJ has represented a small grassroots group called “Recall Dale Washam” in a civil rights lawsuit challenging government-imposed restrictions on the campaign’s free speech rights in the guise of a campaign finance law. We are challenging this law because, like all campaign finance laws, it interferes with fundamental constitutional rights and restricts the ability of Americans to speak out and participate in the political process.

But the PDC has threatened to fine the recall committee hundreds of thousands of dollars because of IJ’s legal help. The PDC claims that IJ’s free legal help to Recall Dale Washam in the civil rights lawsuit was a “campaign contribution”—a contribution designed to see the controversial politician removed from office when, in fact, it was free legal help designed to vindicate the free speech rights of our clients. (IJ’s only goal was to ensure the recall committee was freed from arbitrary government-imposed limits on its free speech rights; we had no interest in whether Washam remained in office.) But because the recall committee never knew it needed to file campaign finance reports disclosing the value of IJ’s free legal help, the PDC says that the recall committee broke Washington’s campaign finance laws.

Treating legal services for civil rights lawsuits as “campaign contributions” directly threatens people’s ability to protect their rights in court. To get a campaign finance law struck down, for example, you need a lawyer’s help to file a lawsuit against the government. But the only way for grassroots activists to afford lawyers is through free legal services. This is often where IJ and other groups come in.

IJ, like most public interest law firms, is a tax-exempt organization. This means that we don’t charge clients for our services and instead accept tax-deductible contributions to sustain our mission. But one of the rules for 501(c)(3) organizations is that we cannot participate in candidate elections and must limit our overall political involvement. So, if free civil rights litigation is a “campaign contribution,” IJ’s 501(c)(3) status—and our entire mission—would be in jeopardy. We—and other public interest law firms—could no longer help groups like Recall Dale Washam challenge campaign finance laws.

Treating free civil rights litigation as a campaign contribution also means that the government could regulate legal representation like it regulates campaign contributions. Some campaigns face strict limits on contributions, which would limit lawyers’ ability to volunteer their time to vindicate constitutional rights. And because campaign finance regulations make people less willing to get involved, campaigns will find it harder to get free legal help to protect their civil rights even where there are no absolute limits.

IJ has already secured injunctions in both cases against the government enforcing its ridiculous claims against our clients (and IJ in the second case), but the fight will continue until these would-be political censors in the government are prevented from pursuing their ill-used and unconstitutional power grabs.

When IJ and our clients team up to challenge unconstitutional laws, we are engaging in what the U.S. Supreme Court has recognized as political speech and freedom of association that is highly protected by the First Amendment. That is why IJ has gone back to court against Washington to protect everyone’s right to sue the government to protect constitutional rights.

Paul Avelar is an IJ attorney.

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