New Lawsuit in Washington Recall Battle Shows Campaign Finance Restrictions Limit Free Speech and Political Participation

John Kramer
John Kramer · June 6, 2011

Arlington, Va.—What began in Washington state as a recall effort to remove a questionable local politician from office has now grown into a campaign finance fight with nationwide implications, as recall efforts have become part of the battles that rage in other states over budgets, taxes and public employee union entitlements.

A federal lawsuit filed on June 7, 2011, in Tacoma, Wash., by the Institute for Justice on behalf of a grassroots activist and her volunteer attorneys spotlights how campaign finance laws unconstitutionally limit political speech and participation, and interfere with the ability of the people to bring about necessary and important political change. Washington’s campaign finance laws protect incumbents from recall elections by arbitrarily limiting how much money citizens may donate to recall efforts and by limiting how much time individuals like lawyers, bookkeepers and accountants may volunteer for recall campaigns.

Retired Naval officer Robin Farris watched with dismay as media stories started coming out about how Pierce County Assessor-Treasurer Dale Washam was running his office. As the local newspaper, the Tacoma News Tribune, reported: “The two-year tenure of Dale Washam . . . has turned a minor government office into a fountain of perpetual controversy . . . . [I]nvestigations state that Washam retaliated against his employees, wasted government resources, abused his power and hindered the inquiries. Costs of those investigations and other legal matters tied to Washam’s office now exceed $108,000. The four damage claims—preludes to lawsuits—seek a collective total of $4.25 million.”

Upset with what she saw as Washam’s completely dysfunctional management, she decided—for the first time in her life—to get involved in politics. She started organizing a campaign to recall Washam from office.

Like many Western states, Washington allows the people to vote on whether an elected official should remain in office. In order to limit this power to only those officials who have created serious questions about their fitness for office, Washington law requires a Superior Court judge to decide if the charges against the official are sufficient. A direct appeal can then be taken to the Washington Supreme Court. In other words, a recall campaign is difficult and expensive and oftentimes involves significant litigation before a campaign can even begin to collect signatures.

But Washington law limits almost every contribution to most recall campaigns to $800. This low limit means that campaigns to recall elected officials are hobbled from the very beginning. Worse yet, the Public Disclosure Commission—the unelected officials in charge of regulating political speech in Washington—views free legal services as a campaign contribution, even though Washington law requires significant litigation before a recall campaign can even start. When the Tacoma law firm of Oldfield & Helsdon volunteered to help with state-mandated litigation, the PDC told them their volunteer efforts were a campaign contribution limited by the law.

“It is time lawmakers recognize that political speech requires spending money, and when the government limits contributions on political speech, as it is here in contributions to recall elections, it is unconstitutionally limiting political speech and participation,” said Institute for Justice Washington Chapter Executive Director Bill Maurer. Maurer recently argued another campaign finance case before the U.S. Supreme Court challenging Arizona’s “Clean Elections” Act.

The Institute for Justice filed suit in the U.S. District Court for the Western District of Washington in Tacoma on behalf of Robin Farris, the Recall Dale Washam Committee, and Oldfield & Helsdon. The defendants are the members of the Washington Public Disclosure Commission (Dave Seabrook, chair, and Barry Sehlin, Jennifer Joly, and Jim Clements, as well as the Interim Executive Director of the PDC, Doug Ellis) in their official capacities. The caption for the case is Farris et al. v. Seabrook et al.

“Washington law makes it almost impossible for grassroots activists to run recall campaigns—we already don’t have access to donor contacts like candidates for office and the $800 limit per person shuts off vital contributions we need to spread our message,” said Robin Farris. “The $800 contribution cap is just one more roadblock for regular citizens starting recall campaigns.”

IJ client Jeff Helsdon said, “The government has no business limiting how much time I can volunteer in my community and for whom I can volunteer. If this recall campaign is important enough to me to volunteer my time, it is my place—and not the government’s place—to decide how much time and effort I dedicate to this. The PDC has completely overstepped the limits of its power.”

Maurer said, “Washington’s recall law requires expensive litigation to get a recall on a ballot and at the same time caps volunteer legal services. This is a one-two punch that ensures only wealthy Washingtonians can move for a recall; ordinary Washingtonians can’t even effectively try.”

IJ Senior Attorney Steve Simpson said, “With the shake up at the polls in November and the ongoing battles over the budget, taxes and entitlements, citizens in several states are turning to the right to recall politicians. That is happening in Wisconsin right now, and there’s talk of recall efforts in other states. But the legal hurdles to mounting a recall effort are high and the campaigns expensive. Both sides should be permitted to raise and spend as much money on speech advocating for or against recall as they wish, but campaign finance laws make that difficult, if not impossible.”

The limits on contributions to recall campaigns limit political speech, insulate incumbent politicians from efforts to hold them accountable and neutralize the peoples’ right of recall. That is why Farris and Oldfield & Helsdon have joined with the Institute for Justice to challenge the limits on contributions to recall campaigns in federal court. Without the intervention of a federal court, Washington’s campaign finance laws will continue to protect even the most unfit public officials from recall.

Maurer concluded, “If the right of recall is to remain a valuable tool for popular control over officials who purport to serve the public, it cannot continue to be frustrated by purposeless laws like Washington’s.”