Free Speech Victory 

John Kramer
John Kramer · January 19, 2012

Arlington, Va.—Today, the 9th U.S. Circuit Court of Appeals upheld an injunction that prevented the state of Washington from restricting how much money people may give to campaigns to recall elected officials in Washington. The decision is a major victory for the First Amendment and preserves the people’s right of recall guaranteed by the Washington Constitution. The decision is Farris v. Seabrook.

The case was filed on June 7, 2011, and came about after retired naval office Robin Farris read about serious charges of misconduct in office by Pierce County, Wash., Assessor-Treasurer Dale Washam. Washington has a strict and carefully calibrated recall system that prevents officials from being recalled simply for political reasons or because people do not like their decisions. Instead, before a recall can proceed, the proponents of the recall must prove to a Superior Court judge that the charges constitute malfeasance or misfeasance, and this decision may be appealed to the Washington Supreme Court. Thus, a recall campaign involves considerable litigation before it may even begin.

Attorneys Tom Oldfield and Jeff Helsdon of the Tacoma, Wash., law firm Oldfield & Helsdon, PLLC, were also concerned about Assessor Washam and volunteered free legal assistance to the recall campaign. Washington’s Public Disclosure Commission (PDC) called their volunteer services an in-kind campaign contribution, and Washington law imposes an $800 limit on contributions to recall campaigns, including in-kind contributions.

The $800 restriction made the chances of successfully promoting a recall campaign impossible. In addition to effectively outlawing pro bono legal assistance to a campaign, it also made it impossible for recall campaigns—often run, as in this case, by political novices with no established base of political support—to raise sufficient funds to hire signature gatherers. Realizing that Washington law was effectively extinguishing the right to recall, Farris and Oldfield & Helsdon joined with the Institute for Justice to fight these limits on grassroots advocacy.

Farris, Oldfield & Helsdon and the Recall Dale Washam Committee, represented by IJ, brought a federal civil rights suit challenging Washington’s $800 limit on contributions to recall campaigns. The plaintiffs then sought a preliminary injunction, which the federal district court granted. The PDC appealed this decision to the 9th Circuit, which today affirmed the district court, meaning that the PDC is enjoined from enforcing this law against Farris and the other plaintiffs until the case can be heard on the merits.

The court, in an opinion by Judge Raymond C. Fisher, held that “the plaintiffs have satisfied their burden … to demonstrate that the contribution limit is likely an unconstitutional and harmful burden on the plaintiffs’ rights of free speech under the First Amendment.” The court rejected the PDC’s argument, and the argument of campaign finance “reform” groups as amici curiae, that the limits were necessary to fight corruption or the appearance of corruption: “Neither the State nor amici … has presented any evidence showing that contributions to recall committees in Washington raise the specter of corruption, and certainly not in this case.”

The court upheld the injunction even though the campaign had not succeeded in collecting enough signatures to place the recall of Assessor Washam on the ballot. The court concluded that, because disputes involving elections typically take longer to resolve than the election itself, the recall challenge was “capable of repetition, yet evading review.”

Bill Maurer, the executive director of the Institute for Justice Washington Chapter, who argued the case before the 9th Circuit, said, “Washington’s law was the ultimate incumbent protection scheme: It made it impossible to recall the most abusive elected officials. Today’s decision clearly recognizes that this law improperly interferes with the ability of Pierce County citizens to exercise their First Amendment rights in recall campaigns. Now, we are one step closer to ensuring that all Washingtonians wishing to exercise the right of recall will not be hampered by artificial restrictions on their speech.”

Robin Farris said, “This is a great victory for ordinary citizens. Washington law makes it almost impossible for grassroots activists to run recall campaigns. The contribution cap, as the court affirmed today, was a pointless roadblock to our recall campaign and to all regular citizens starting recall campaigns. Because of today’s ruling, we all have a more meaningful right to speak freely, to associate with others, and to recall our elected officials.”

Jeff Helsdon said, “I am very pleased with today’s ruling. The PDC was attempting to limit our right to volunteer our time to litigation that Washington requires before a recall can be started. The court saw that this incumbent protection law vitiated our rights of free speech, free association, and to recall elected officials. The winners today are the citizens of the state of Washington, who can now hold elected officials accountable as envisioned in the Washington State Constitution, and the First Amendment itself.

IJ Washington Chapter Attorney Jeanette Petersen said, “This case has implications for recall campaigns nationwide. It is time lawmakers realized that political speech requires money, and when the government limits contributions to campaigns, it limits how much information voters will receive. Until this law is fully struck down on its face, however, other recall campaigns will only be effective if they are run by the independently wealthy.”

Unless the PDC appeals the case further, the case now returns to the U.S. District Court for the Western District of Washington for proceedings on the merits.