Arlington, Va.—America’s proud tradition of pro bono civil rights litigation is under attack.
The ability of nonprofit public interest law firms like the Institute for Justice and the ACLU to represent clients advocating for public change through any political campaigns could be in serious jeopardy if recent efforts by Washington’s Public Disclosure Commission are left unchecked. That’s why the Institute for Justice filed suit today in state court not only on behalf of its clients, but on behalf of itself in a first-of-its-kind legal effort to end the PDC’s vindictive actions to silence those who engage in grassroots advocacy and the public interest advocates who would go to court to defend their rights.
The seeds of the current legal fight were planted in 2011 when the Institute for Justice began representing “Recall Dale Washam,” a grassroots effort run by retired naval officer Robin Farris to recall a controversial local government official in Pierce County, Wash. In Washington, 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, a law firm in Tacoma, Wash., 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. So, 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. IJ stepped up to represent Robin pro bono in her legal challenge against the PDC-enforced cap and scored victories in both the trial court and in a federal appeals court.
The current lawsuit, filed today in Pierce County Superior Court in Tacoma, Wash., takes on an even more outrageous effort by the PDC, which now seeks to force the Recall Dale Washam Committee to claim that IJ’s legal representation had nothing to do with protecting the group’s rights to free speech and political participation—rights the PDC was looking to quash—but, rather, that it was a political contribution designed to help remove Dale Washam from office. Such a contribution would not be allowed if IJ wanted to maintain its 501(c)(3) tax-exempt status under the IRS code. The Institute for Justice, like most public interest law firms, attracts tax-deductible contributions to sustain its mission.
“It is bad enough that Washington’s Public Disclosure Commission is working to silence those who merely seek to participate in the political process, but now the PDC has sunk to a new level of vindictiveness, pursuing a policy that threatens America’s long-held tradition of civil rights advocacy,” said Bill Maurer, executive director of the Institute for Justice Washington Chapter.
“The Institute for Justice has never had an interest in whether Dale Washam was recalled; our only concern in representing the recall committee was to lift the arbitrary cap on contributions the PDC put in place, which stifles political speech and participation,” Maurer said. “The limit is a mere $900, which amounts to about two hours of billable time for the average attorney from any major American city.”
If the PDC is successful in its efforts to require the Recall Dale Washam campaign to count IJ’s help as a “campaign contribution,” IJ would not only lose its ability to pursue its mission to vindicate constitutional rights through its pro bono legal help, it would also jeopardize its tax status because its legal services would be misconstrued as political advocacy—a “no no” in the nonprofit world. The recall campaign itself would face massive fines and even criminal punishment for accepting what the PDC is calling “in-kind contributions”—or what American jurisprudence has always considered vitally important free civil rights legal representation.
“The PDC has left IJ with two unacceptable choices: Jeopardize its nonprofit status or limit its public interest advocacy,” Maurer said. “Representing ourselves as well as our clients from the recall case, who rely on our free civil rights representation, the Institute for Justice has selected a third option: We will take the PDC to court. We hope that this case will put an end to the PDC’s unprecedented bullying and set an important precedent to stop this brazen attempt to frustrate federal civil rights law. We will defend the right to provide and receive legal help in vindicating fundamental constitutional rights.”
“State campaign finance laws don’t trump federal civil rights, including the constitutionally enshrined right to free speech,” said IJ Attorney Paul Avelar. “Americans have the right to access lawyers to vindicate their constitutional rights and lawyers have a right to provide those services to whomever they choose without government-imposed limits. The government here is telling people whether they can vindicate their rights and who can represent them. If the PDC prevails, it could set national precedent that could end pro bono representation by nonprofits of people involved in campaigns altogether.”
Avelar said, “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 plays a central role in protecting First Amendment rights, especially the rights of political novices and political outsiders of modest means.”
“Simply put, pro bono representation is often indispensable in determining the scope and constitutionality of campaign finance laws,” said IJ President and General Counsel Chip Mellor. “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.”