Washington Supreme Court Gives Green Light to Using the Courts to Settle Political Scores

J. Justin Wilson
J. Justin Wilson · January 23, 2015

Olympia, Wash.—Today, the Washington Supreme Court issued an opinion in Utter v. BIAW, a never-ending legal dispute arising out of Washington’s 2008 gubernatorial race between Dino Rossi and Christine Gregoire. Unfortunately, rather than end the dispute and create clear rules for people participating in political campaigns, the court’s decision today keeps the case going, while creating new ambiguities that politically motivated private parties can use to drive speakers from the political playing field.

Rejecting the path taken by the U.S. Supreme Court that holds that an organization can only be considered a political committee when its primary purpose is campaign activity, the Washington Supreme Court today held that an organization can be treated as a political committee when an unclear percentage of the organization’s purpose is supporting or opposing a candidate. Political committee status is burdensome and intrusive, especially for pre-existing organizations that are devoted to other activities and only occasionally weigh in on political campaigns.

“The Washington Supreme Court’s decision today creates incredible ambiguity in an already broad campaign finance statute,” said Bill Maurer, managing attorney of the Institute for Justice’s Washington office, which filed an amicus brief in favor of Building Industry Association of Washington. “The decision means that the law can force an organization that reaches some unknown, and unknowable, level of political activity to fundamentally alter itself into a form ill-suited to the majority of its activities.”

The case stems from the 2008 election, when former Washington Supreme Court justices Faith Ireland and the late Robert Utter filed a “citizen’s suit” against BIAW for what they alleged were violations of Washington’s Byzantine campaign regulations. BIAW was a long-time supporter of gubernatorial candidate Dino Rossi and other causes and candidates, including judicial candidates, who urged less governmental restrictions on business. The former justices clearly stated that their motivation in suing BIAW was due to the group’s involvement in judicial elections.

After investigating the complaint, the Washington Public Disclosure Commission, the agency primarily tasked with enforcing Washington’s campaign finance laws, decided not to bring any action against BIAW.

Ordinarily, when the government decides that no law was broken, that ends the story. But Washington, like many other states, has a provision in its campaign finance laws that allows for interested parties to sue others for alleged violations of the campaign finance laws when the PDC or the attorney general decline. This opens the possibility that interested parties will use alleged violations of ambiguous campaign finance laws to pursue their political goals in the courts.

One of the justice’s claims was that BIAW should have registered as a “political committee” under Washington law. In BIAW’s case, being declared a “political committee” would have severely limited the group’s ability to function at all.

Eight days before the 2008 election, the plaintiffs deposed Rossi, and their lawyer conducted a press conference outside the deposition. The election came and Rossi lost—the accusation and publicity around it likely contributing to his defeat. Once the election was over, however, the justices stopped vigorously pursuing the case, with little happening in it until two years later, when BIAW moved to officially dispose of it.

The trial court and the court of appeals both ruled in favor of BIAW. However, the Washington Supreme Court determined that there is a question of whether BIAW was a political committee.

“When this lack of specificity is combined with Washington’s ‘private enforcement’ mechanism, through which private parties may prosecute their political opponents, the end result is a ‘DANGER: KEEP OUT’ sign for Washingtonians wishing to participate in politics,” said Maurer. “Surely, anyone viewing the politically-motivated prosecution of BIAW for seven years should conclude that participating in Washington politics is a dangerous game. Unfortunately, the Washington Supreme Court’s decision today makes the rules of that game less clear than ever.”

Founded in 1991, the Institute for Justice is the national law firm for liberty. To learn more about IJ, visit www.ij.org.