IJ-WA Defends Free Speech In Washington State

October 2005

IJ-WA Defends Free Speech In Washington State

By Charity Osborn

The dire warnings of campaign finance reform opponents are now coming true.

Here in Washington state, talk radio hosts may be pressured into silence on important public issues because their speech is objectionable to the political establishment. To make matters worse, the pressure may come at the hands of financially and politically motivated local governments, delegating their prosecutorial power to an equally self-interested law firm.

The Institute for Justice Washington Chapter (IJ-WA) is defending against this unprecedented assault on free speech, free association and due process.

The trouble started when a group of citizens opposed to Washington’s newly instituted 9 1/2-cent tax increase on gasoline formed No New Gas Tax (NNGT), a political action committee dedicated to putting the gas tax to a vote. Initiative 912 (I-912) proved popular with the public and it quickly became apparent that NNGT would succeed in gathering the 225,000 signatures it needed to accomplish its goal within a short 32-day time period.

NNGT’s success can be attributed in part to the on-air coverage given I-912 by conservative radio talk show hosts John Carlson and Kirby Wilbur, who championed the anti-tax initiative and urged their listeners to support it. Carlson and Wilbur’s endorsements were so helpful that they attracted the attention of “Keep Washington Rolling,” the political action group formed to oppose I-912.

Executive Director of the Institute for Justice Washington Chapter William R. Maurer at the launch of the case.

During the signature-gathering phase of the initiative, the prosecuting attorneys of San Juan County and the cities of Seattle, Kent and Auburn delegated their prosecutorial authority to enforce Washington’s “Fair Campaign Practices Act” to a member of Keep Washington Rolling that not by coincidence is a large Seattle-based law firm that is bond counsel to Washington State. The law firm then filed a lawsuit against NNGT, alleging, among other things, that Carlson and Wilbur’s on-air discussions constituted “in-kind” contributions that should have been reported under Washington law. (An “in-kind” contribution is a non-monetary contribution, like printing services or equipment.)

The argument that on-air political discussions might constitute in-kind contributions is totally unprecedented. But that didn’t stop a Thurston County judge from issuing an injunction ordering NNGT’s disclosure of all such “contributions” from Carlson and Wilbur. NNGT must now waste a significant portion of its limited time and resources parsing through media mentions of I-912, affixing “values” and reporting them as “in-kind contributions” to the campaign.

NNGT recognized the constitutional implications of the situation and enlisted the help of the Institute for Justice Washington Chapter. On August 9, IJ-WA answered the lawsuit and filed counterclaims against the prosecutors on NNGT’s behalf, alleging violations of free speech, free association and due process, and seeking to have the judge’s order reversed.

The underlying lawsuit is not about the government’s concern for campaign finance law, but rather is a veiled attempt to harass NNGT and get its supporters to be quiet. Had they been able to keep I-912 off the ballot, the county and cities that delegated their prosecutorial authority to the private law firm would have ensured the success of the State’s plan to issue bonds, guaranteed by the gas tax revenues, to fund transportation projects in their respective jurisdictions. The law firm would have been guaranteed a windfall of legal fees for work associated with the planned bond sales. Such bald conflicts of interest in the outcome of the proceedings by the prosecutors calls into question the integrity of the entire process and seriously implicates due process concerns.

Moreover, treating media discussions as “in-kind” contributions similar to financial contributions violates the free speech guarantees found in both the U.S. and the Washington constitutions. If the judge’s order stands, members of the media will be required to self-censor if they wish to avoid being labeled as campaign contributors and will no longer be able to fulfill their vital democratic role as watchdogs of the political establishment. They will not be free to associate with whichever groups they please for the advancement of their beliefs and ideas—an inseparable aspect of the liberty guaranteed by the 14th Amendment. In addition, they will quickly begin to bump up against any limits on the amounts one can contribute to political campaigns. The freedom of the press will be seriously compromised.

Opponents of campaign finance laws have long warned that such laws could quickly become a tool to shut down political speech with which the government disagrees. By pushing back at a flagrantly unconstitutional judicial order and prosecutorial abuse, IJ-WA is working hard to ensure that this instance of such misuse will be the last.

Charity Osborn is a staff attorney with the Institute for Justice Washington Chapter.