Free Speech Victory in Washington State

John Kramer
John Kramer · November 6, 2012


Arlington, Va.—In a decision well-timed for Election Day, the U.S. District Court for the Western District of Washington today concluded in the case of Farris v. Seabrook that the state of Washington had unconstitutionally enforced a state law against the Recall Dale Washam Campaign. The law at issue restricts how much money people may give to campaigns to recall elected officials in Washington.

The case was filed on June 7, 2011, and came about after retired naval officer 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 a limit (then $800, now $900) 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 U.S. Circuit Court of Appeals, which affirmed the district court and enjoined the PDC from enforcing this law against Farris and the other plaintiffs until the case could be heard on the merits.

The merits decision came today, when Judge Robert Bryan rejected the PDC’s argument that the enforcement of the law against the Recall Dale Washam campaign was necessary to fight corruption or the appearance of corruption in the recall process. Noting that the PDC had not produced any evidence that the campaign had coordinated the recall with any candidate, or even the existence of a “wink and nod” between the campaign and a candidate, the court concluded that the “Government has presented no evidence demonstrating an issue of material fact regarding the appearance of or actual corruption.”

The court held that the PDC had unconstitutionally applied the law to the campaign 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.”

Today’s decision does not resolve the issue of whether this law can ever be constitutionally applied, as Judge Bryan ruled that he did not need to consider the facial constitutionality of the law because he had held that the law was unconstitutional as applied to these plaintiffs. This leaves the ability of future recall campaigns to fully exercise their First Amendment rights unsettled.

Bill Maurer, the executive director of the Institute for Justice Washington Chapter, said, “Today’s decision clearly recognizes that this law improperly interfered with the ability of Pierce County citizens to exercise their First Amendment rights in recall campaigns. The government’s argument represented an unprecedented intrusion into the free association rights of this campaign and the court properly concluded that the PDC violated the First Amendment when it applied this law to this campaign.”

“The court’s judgment is a positive outcome for our efforts, but more needs to be done,” said Farris. “The recall process is difficult enough without financial limits on contributions. The contribution limits ensures that elected officials are almost impossible to be recalled. I don’t believe this is the intent of the Washington’s recall process and deserves to be revisited.”

Jeff Helsdon said, “I am pleased that today’s ruling recognizes that the PDC’s application of this law to us and to the campaign violated our rights of free speech and free association. This law essentially made recalling Dale Washam impossible and it demonstrated that these types of restrictions on recall campaigns are little more than the ultimate incumbent protection racket. We hope that the PDC and lawmakers recognize that this law needs to be completely scrapped so that the First Amendment rights of future recall campaigns are not similarly affected.”

IJ Washington Chapter Attorney Jeanette Petersen said, “Political speech requires money and when the government limits contributions to recall campaigns, it limits how much information voters will receive and upsets the careful balance Washington state has created in its recall process. We are currently reviewing what steps we may take to finally do away with this law and ensure that future recall campaigns are not unconstitutionally restricted.”