Here is How Campaign Finance “Reform” Chills Free Speech

John Kramer
John Kramer · August 9, 2005

Washington, D.C.—Opponents of “campaign finance” laws warned that the laws are subject to abuse and that, once passed, such laws could quickly become a tool to shut down political speech with which the government disagrees. To see this fear realized, one need only visit western Washington, where politically motivated prosecutors are misusing campaign finance laws to silence both a popular initiative campaign and media discussions about the campaign with which they disagree. In this case, prosecutors are, quite simply, using campaign finance laws to strike a blow at the heart of free speech.

In the case of San Juan County v. No New Gas Tax, local prosecutors have filed a lawsuit that seeks to derail Initiative 912, which would roll back a massive gasoline tax increase of 9.5 cents per gallon over four years. To accomplish this, the government has delegated its prosecutorial authority to a private law firm that stands to gain politically and financially from harassing the initiative campaign. The firm, Foster, Pepper & Shefelman PLLC, is not only a member of the political opposition to the initiative but also “bond counsel” to the State agency that would issue bonds based on the revenue derived from the tax increase. Simply put, with no tax, there are no revenue and no bond issuance, and therefore fewer potential fees for Foster Pepper.

Foster Pepper brought a complaint against No New Gas Tax, the political committee promoting the initiative, alleging the campaign violated the State’s campaign finance laws. The complaint claims that on-air discussions by two radio talk show hosts urging listeners to support the initiative constituted “in-kind” contributions by the radio station to the No New Gas Tax Committee that should have been disclosed. (An “in-kind” contribution is a non-monetary contribution, like printing services or equipment.) Thurston County Superior Court granted the private prosecutors’ preliminary injunction, forcing the campaign to report on-air discussions of the initiative as “in-kind” contributions.

“The private prosecutors’ case is an arrow aimed at the heart of constitutionally protected free speech,” said Bill Maurer, executive director of the Institute for Justice Washington Chapter (IJ-WA), which is defending the No New Gas Tax Committee for free. IJ-WA states in the legal documents it filed today in Thurston County Superior Court that the lawsuit seeking to derail the No New Gas Tax initiative violates constitutional guarantees of free speech, free association and due process. IJ-WA also filed a counterclaim on behalf of the campaign against the prosecutors. “The power to regulate speech is the power to suppress speech. This case proves that politically motivated prosecutors can use campaign finance laws to suppress speech they don’t like.”

“The prosecutors’ message to the people of Washington is: shut up and pay your taxes,” said Charity Osborn, an IJ-WA staff attorney. “Robust political discourse is absolutely essential in a campaign. The government and its private prosecutors threaten the right of the media to speak and the right of the people to hear information about the campaign. That’s why IJ-WA is committed to preserving our rights of free speech and free association in the face of efforts to restrict these rights under the guise of so-called campaign finance laws.”

Maurer said, “Forcing campaigns to report favorable media discussions of their issues or candidates chills the press’ freedom to discuss public issues and requires it to self-censor in order to avoid being labeled as campaign contributors. Treating discussions of a campaign as ‘in-kind’ contributions also creates an administrative nightmare, as campaigns are forced to scour all media outlets to disclose such discussions.”

Maurer concluded, “The prosecutors’ action also constitutes a prior restraint on speech because both the media and campaigns will almost certainly refrain from speaking in order to avoid becoming entangled in the campaign finance laws. What’s more, the actions of the prosecutors violate due process because they have delegated their prosecutorial authority to a law firm that is both financially and politically interested in ensuring that the initiative campaign is preoccupied and ultimately defeated.”

In addition to defending the suit brought by the prosecutors and filing a counterclaim on behalf of No New Gas Tax in superior court, IJ-WA has requested that the Washington State Court of Appeals review the preliminary injunction order prior to the conclusion of the case at the trial court level.