Washington Political Speech - Background




Litigation Backgrounder

Free Speech Under Fire

Politically Motivated Prosecutors
Seek to Restrict Media Discussion of Political Issues

The Issue in a Nutshell:

Talk radio hosts may be pressured into silence rather than speak on important public issues.  Speech objected to by the political establishment may soon become so burdensome that the speakers throw in the towel.  These are the inevitable trampling of rights that arise when government seeks to regulate speech in the guise of campaign finance reform.

Both the U.S. and Washington Constitutions guarantee the right to free speech.  At the core of these protections lies political speech.  In the case of San Juan County v. No New Gas Tax, local prosecutors seek to derail an initiative that would roll back a massive tax increase.  To accomplish this, they have delegated their 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.  The firm brought a complaint against No New Gas Tax, the political committee promoting the initiative, alleging that 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.)  The prosecutors were granted a preliminary injunction forcing the campaign to report on-air discussions of the initiative as “in-kind” contributions.

The prosecutors’ complaint violates constitutional guarantees of free speech, free association and due process.  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.  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.  Finally, 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.

Because the prosecutors’ actions are so inconsistent with basic constitutional guarantees, the Institute for Justice Washington Chapter (IJ-WA) is defending the campaign against the prosecutors’ politically motivated lawsuit, as well as bringing a counterclaim on behalf of the campaign against the prosecutors and their unprecedented assault on free speech, free association and due process.  

The Institute for Justice is a non-profit public interest law firm that litigates on behalf of individuals whose rights are being violated by the government.  IJ accepts no government funds.  To make a tax-deductible contribution to support IJ’s litigation, call (703) 682-9320 ext. 233 or visit www.ij.org/donate.

Introduction

Opponents of “campaign finance” laws warned that they 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. [1]   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.

This case unfortunately represents a trend in American law.  Under the guise of “good government,” entrenched political interests are using the force of law to silence their opponents.  This unfair and unconstitutional application of certain campaign finance laws is exacerbated by the fact that the prosecutors have delegated their prosecutorial authority to a politically motivated, financially interested private party whose interest is not to see that justice is done, but to defeat the initiative campaign and destroy the political movement that spawned it.  The Institute for Justice Washington Chapter (IJ-WA) believes the U.S. and Washington Constitutions protect public discussions of issues affecting the lives of every Washingtonian and that the even-handed, fair application of the law is a right guaranteed to every American.  For these reasons, IJ-WA is challenging the efforts of these prosecutors to rob Washingtonians of one of their most basic constitutional liberties—the right to speak freely and without government supervision in matters of public opinion.

The Facts

This case deals with an effort by local prosecutors to defeat an initiative campaign.  The Washington Constitution reserves to the people the right to make laws through the initiative process. [2]   Indeed, the initiative power is the “first power” reserved by the people. [3]   There are two kinds of initiatives in Washington:  “initiatives to the people” and “initiatives to the legislature.”  This case involves an initiative to the people—under this power the people act as a part of the legislative branch of government by proposing and approving or rejecting proposed laws. [4]   To qualify an initiative, one or more voters may draft a proposed law, file it with the Secretary of State, and then circulate petitions to collect signatures. [5]   In order to qualify for the ballot, initiative supporters must collect signatures equal to eight [LU1]   percent of the votes cast for the office of governor in the last gubernatorial election. [6]   Initiative petitions must be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. [7]

In the 2005 Legislative Session, the Legislature passed, and the Governor signed, Senate Bill 6103. [8]   Among other things, SB 6103 increased the state’s gasoline tax by 9.5 cents per gallon over four years, ostensibly to fund transportation projects. [9]   Opponents, upset at the large tax increase, the absence of congestion relief in the package, and the lack of accountability for current and proposed transportation spending, quickly organized an initiative campaign to repeal the gas tax portion of SB 6103. [10]   A political campaign committee, NoNewGasTax.com (“NNGT”), was formed to sponsor, draft and collect signatures for the initiative, which the Secretary of State designated Initiative 912 (“I-912”).  The opponents of the gas tax faced a substantial barrier, however:  they needed to collect roughly 225,000 signatures in 32 days in order to qualify the initiative for the November 2005 ballot.  They faced another barrier as well.  Shortly after NNGT was formed, a coalition of big business, big labor, big law and big environmental groups formed “Keep Washington Rolling,” a political campaign committee, to ensure that I-912 did not make it on the November ballot. [11]   

Two early proponents of I-912 were radio talk show hosts Kirby Wilbur and John Carlson, who are heard on KVI 570 AM in Seattle.  Wilbur and Carlson helped organize the grassroots response to the new gas tax.  Along with other hosts on other stations, Wilbur and Carlson, on their respective shows, urged people to sign the petitions and donate money, and told people how and where they could do so. [12]   Neither Wilbur nor Carlson played any official role in NNGT, however, and they regularly allowed opponents of I-912 on their shows to discuss why they believed the gas tax increase was a good idea.  Little did they know that their constitutionally protected right to participate in the political process and to speak about issues of public concern would soon come under fire from Keep Washington Rolling and its accomplices in the government.

On June 22, 2005, at the height of the signature-gathering effort to qualify I-912 for the November 2005 ballot, San Juan County and the cities of Kent, Auburn and Seattle (collectively, the “Prosecutors”), purportedly acting in the name of the State of Washington, filed a complaint against NNGT and its treasurer, Jeff Davis, in the Thurston County Superior Court.  The complaint alleged, among other things, that on-air discussions of I-912 by talk radio hosts Carlson and Wilbur constituted “in-kind contributions” to NNGT under Washington’s Fair Campaign Practices Act (“FCPA”) [13] and that NNGT’s failure to report those “in-kind contributions” to the Public Disclosure Commission (“PDC”) violated the FCPA’s reporting requirements. [14]   Despite the fact that NNGT did not control who spoke on the gas tax issue, the Complaint sought to enjoin NNGT from accepting any additional “in-kind contributions” from Fisher Communications, the owner and operator of KVI 570 (presumably in the form of discussions regarding I-912) until NNGT had made disclosures allegedly required by the FCPA.  The Complaint also sought a substantial monetary award in the form of civil penalties, treble damages, attorney fees and costs against NNGT. [15]  

The Complaint was an unusual document in many ways.  First, it was filed not by the Public Disclosure Commission (PDC), the non-partisan governmental agency charged with investigating whether properly completed reports for campaign activities have been filed, [16] but by local prosecutors whose municipalities stood to benefit from the continued collection of the increased gas tax.  The Prosecutors filed the Complaint under a never-before-used section of Washington’s campaign finance laws, [17] which they claim permits prosecuting authorities of political subdivisions to bring FCPA enforcement actions wholly independently of the PDC—the very state entity created to “[i]nvestigate whether properly completed statements and reports have been filed”; “determine whether an actual violation . . . has occurred”; and “issue and enforce an appropriate order following such determination.” [18]

Second, the Prosecutors did not actually bring the action themselves.  Rather, they delegated any prosecutorial authority they might have had to Foster, Pepper & Shefelman PLLC (“Foster Pepper”), a large, private Seattle law firm.  Foster Pepper is a member of Keep Washington Rolling, the rival political action committee formed to defeat I-912. [19]  In fact, Foster Pepper donated $2,500 to Keep Washington Rolling just two days after it filed this lawsuit. [20]   Moreover, Foster Pepper serves as bond counsel for the State of Washington and therefore stands to gain from the legal work associated with the State’s planned sale of bonds guaranteed by gas tax revenues if I-912 is defeated. [21]   Simply put, with no tax, there are no revenue and no bond issuance, and therefore fewer potential fees for Foster Pepper.

In short, Foster Pepper—the de facto prosecutor in this action—is substantially self-interested in the action’s outcome, which creates a conflict of interest and a glaring due process violation.  As if to demonstrate the political motivation behind the Prosecutors’ actions, the press release announcing the lawsuit against NNGT came not from one of the Prosecutors’ offices or even from Foster Pepper.  It came instead from Keep Washington Rolling. [22]   [LU2]  In the press release, San Juan County Prosecuting Attorney explained the reason for the lawsuit:  “As a county, we have a lot at stake.  We depend on a healthy transportation network, and the transportation package is a fair way to pay for it.” 

On the date they filed the action, the Prosecutors moved for a preliminary injunction ordering NNGT’s full disclosure of the money contributions and supposed “in-kind contributions”—i.e., Carlson’s and Wilbur’s on-air discussions.  NNGT opposed the preliminary injunction, arguing, among other things, that treatment of a radio talk-show host’s on-air discussion of political issues as an “in-kind contribution” subject to campaign finance reporting would constitute an unconstitutional restraint on free speech.  The superior court nevertheless issued an injunction on July 1, 2005, finding that “[broadcasting company] Fisher Communications/KVI’s donation of free air time to the NoNewGasTax.com committee is an in-kind contribution . . . that must be disclosed.” [23]   The court ordered NNGT “to make full and complete disclosure to the Washington State Public Disclosure Commission of all contributions” received during the previous reporting period, including, specifically, the “free air time provided by Fisher Communications.” [24]   Despite the vagueness and breadth [LU3]   of the obligations implicated by the Preliminary Injunction Order, NNGT promptly complied as best it could by estimating the value of the supposed “in-kind contribution” of Carlson’s and Wilbur’s political discussion and filing this with the PDC.

Ultimately, however, the Prosecutors were unsuccessful in their efforts to interfere with the NNGT’s ability to collect signatures for the initiative.  NNGT achieved a stunning level of success when they submitted almost twice the number of signatures they needed to qualify I-912 for the November 2005 ballot. [25]

The Fight for Free Speech

The Prosecutors’ actions, and the Preliminary Injunction Order issued at their request, represent a naked assault on free political discourse in Washington State.  The Prosecutors’ actions threaten the ability of every future campaign and every media outlet in the Evergreen State to engage in constitutionally protected discussions regarding current political issues.  Under the guise of regulating the reporting of media discussion of controversial campaigns, the Prosecutors really seek to halt such discussions altogether and to control the topics and viewpoints that are communicated to the people.  The Prosecutors’ message to people wishing to exercise their constitutionally protected rights to engage in political activity and promote initiatives is:  “Shut up and pay your taxes.” 

If the Prosecutors succeed, every future campaign—especially those that displease established political interests—will face the threat that a politically motivated local prosecutor may file a complaint because he or she thinks there’s been too much interaction between a campaign and the media, or that a media personality is talking too much about a campaign the prosecutor does not like.  If that happens, free speech and free association will be resigned to American memories rather than constitutionally enshrined rights.

            And that is why NNGT and Jeff Davis have decided to fight.

On August 9, 2005, the Institute for Justice Washington Chapter (IJ-WA) filed both an Answer to the Prosecutors’ Complaint and a 14-count counterclaim against the Prosecutors in Thurston County Superior Court in Olympia.  IJ-WA and NNGT are challenging the Prosecutors’ actions as violations of the free speech, free association and due process guarantees of the U.S. and Washington Constitutions.  The civil rights lawsuit on behalf of NNGT seeks to prevent the Prosecutors from enforcing unconstitutional restrictions on NNGT’s fundamental constitutional rights.  In addition, IJ-WA has appealed the Preliminary Injunction Order, requesting that the Washington Court of Appeals reverse the order prior to the completion of the case at the trial court.

With this lawsuit, IJ-WA intends to send a message to local prosecutors in Washington, and to governmental agencies in charge of implementing “campaign finance” laws across the country, that they may not interfere with the exercise of fundamental rights without being challenged.

First Principles

Nearly 50 years ago, the United States Supreme Court wrote:

Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.  This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. [26]

The free exchange of ideas provides special vitality to the process traditionally at the heart of American constitutional democracy—the political campaign. [27]   Indeed, the constitutional protection afforded political speech has its fullest and most urgent application precisely to the conduct of political campaigns. [28]

This principle reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” [29]   In a republic where the people are sovereign, the ability of citizens to make informed political decisions is essential. [30]   The First Amendment thus affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for bringing about of the political and social changes desired by the people. [31]   “Specifically, the First Amendment prohibits the State from silencing speech it disapproves, particularly silencing criticism of government itself.  Threats of coerced silence chill uninhibited political debate and undermine the very purpose of the First Amendment.” [32]   An important corollary to the right to speak is the public’s right to receive information. [33]

The Washington Constitution provides even greater protections for political speech—indeed, any kind of speech—than does the U.S. Constitution.  Our Constitution reads, “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” [34]   In Washington, free speech is a “preferred right” when balanced against other constitutional rights. [35]  

Related to the right to speak is the right to freely associate. [36]   “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” [37]   The freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the 14th Amendment, which embraces freedom of speech. [38]   “This right of association, like free speech, lies at the foundation of a free society.” [39]   This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. [40]   In view of the fundamental nature of the right to associate, governmental action that may have the effect of curtailing freedom to associate is subject to the closest scrutiny by the courts. [41]

A final, but by no means less imperative, principle is the importance of freedom of the press.  The U.S. Constitution specifically selected the press—in all its forms—to play an important role in the discussion of public affairs: [42]

[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they are selected to serve.  Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change . . . muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. [43]

Indeed, upon presenting the Bill of Rights to Congress in 1789, James Madison explained that “the liberty of the press is expressly declared to be beyond the reach of this government.” [44]   Consequently, since the first days of the Republic, our courts have recognized the importance of a free press and have remained vigilant to protect it from government intrusion. [45]   This vigilance has endured even when governmental efforts to restrict or regulate the press have taken unusual or unique forms—“Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers.” [46]

The Prosecutors’ actions in this case plainly violate these bedrock constitutional principles.  Specifically, the Prosecutors’ actions, and the Preliminary Injunction Order, violate the rights of free speech, free association, and [LU4]  free press in the following ways.

Vagueness and the Chilling of Constitutionally Protected Speech

Free speech rights are “delicate and vulnerable, as well as supremely precious in our society.” [47]   Consequently, courts have required that legislative enactments that impinge on these rights be drawn with precision and narrow specificity:[48]

Vague statutes are objectionable for three primary reasons.  First, they trap the innocent by not providing fair warning.  Second, they impermissibly delegate basic policy matters to lower level officials for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.  Third, when vague statutes involve sensitive areas of First Amendment freedoms, they operate to inhibit the exercise of those freedoms. . . .  [T]hese vagueness concerns are more acute when a law implicates First Amendment rights and, therefore, vagueness scrutiny is more stringent. [49]

A governmental standard with an uncertain meaning will inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden area were clearly marked. [50]   The danger of such a chilling effect upon the exercise of vital First Amendment rights must be guarded against by clearly informing citizens what is being forbidden. [51]   An enactment is void for vagueness if persons of common intelligence must guess at its meaning and differ as to its application. [52]

The relief sought by the Prosecutors and the Preliminary Injunction Order falls squarely within this definition of vagueness.  The order requires NNGT to report on-air statements made by talk radio hosts regarding I-912 as “in-kind” contributions by Fisher Communications.  Does this mean that all statements regarding I-912 must be reported, or simply those that are supportive of I-912?  If it is the latter, what constitutes a “supportive” comment?  Should NNGT report or omit those times when Wilbur and Carlson featured guests and callers who urged a pro-gas tax position?  What about statements by other talk show hosts?  Are they reportable?  If only statements supporting the initiative are reportable, how strong do they have to be?  Are lukewarm endorsements reportable?  What about newspaper editorials in favor of I-912?  On the basis of the old adage that there is no such thing as bad publicity, what about statements in the media opposing I-912?  They certainly bring awareness of I-912’s existence to the public.  Should they be reported by NNGT, or by Keep Washington Rolling instead?

The Prosecutors may argue that Wilbur and Carlson were part of the grassroots efforts to oppose the gas tax and that this makes them different from other media figures.  If that is what distinguishes Wilbur’s and Carlson’s comments from other media statements, what amount of contact between the media and the campaign is too much?  When does an on-air endorsement of a candidate or issue become a reportable contribution?  America has a long and noble tradition of advocacy journalism, oftentimes about specific issues before the electorate.  For instance, the Federalist Papers were advocacy pieces published in New York newspapers urging voters in that state to approve the new Constitution. [53]   From William Randolph Hearst’s “yellow journalism” to today’s Air America and Rush Limbaugh Program, media personalities have always been active in promoting causes, campaigns and candidates, oftentimes fully engaging in the political process.  If such efforts are subject to regulation, then we have entered a new, more antiseptic era of American discourse, where the government can ensure that great “public crusades” for social change cannot originate from journalists or media figures.  Not surprisingly, many such crusades will never be undertaken at all and the political status quo can remain unchallenged.

This case thus presents the question of whether the media’s freedom of association and speech is subject to regulation and restriction by the government.  Does the participation of a media figure in a campaign strip his him of his strong First Amendment right to discuss the issues?  Because the health of our democracy depends on a vigorous press that is not constantly asking itself if what it says or does is permitted by the government, the answer to that question must be “no.”

Because the relief in the Preliminary Injunction Order is so vague, the safest decision for both the media and campaigns will be to steer “far wider” of the reportable zone than if its boundaries were clear.  When no one can reasonably guess what is or is not permissible, everything becomes presumptively impermissible.  At this point, our free speech rights are subsumed in a cloud of questions and fears.

Prior Restraint

A governmental restriction may be so vague and ambiguous as to constitute a prior restraint on speech.  A prior restraint is an official restriction imposed on speech or other forms of expression in advance of publication. [54]   Because it is unclear which speech falls under the government’s regulation, potential speakers may simply refrain from speaking as much or at all in order to avoid engaging in the regulated conduct. [55]  

Under federal law, a prior restraint carries a heavy presumption of unconstitutionality. [56]   The Washington Constitution, however, flatly forbids prior restraints of constitutionally protected speech. [57]

There are numerous ways in which the relief sought by the Prosecutors constitutes a prior restraint.  Media companies, concerned that they not be perceived as making reportable contributions to controversial campaigns, will inevitably order their on-air personalities to simply refrain from talking about such campaigns.  Moreover, although initiative campaigns do not have a cap on contribution amounts, Washington law does forbid any person from making contributions in the aggregate of $5,000 within 21 days of a general election. [58]   Because what constitutes a media “in-kind” contribution according to the Prosecutors is so utterly unclear, the safer bet for a media company wishing to avoid the $5,000 limitation will be to not mention the campaign at all—a devastating blow to any campaign, especially in the crucial three weeks before a general election.  Such self-censorship by the media is undoubtedly what the Prosecutors hope to achieve.

Overbreadth

A governmental restriction is overbroad if it prohibits constitutionally protected speech. [59]   Restrictions that punish behavior with fines or imprisonment require particular scrutiny if they make unlawful a substantial amount of constitutionally protected conduct, even if they also have legitimate application. [60]

Here, the scope of the relief sought by the Prosecutors is breathtaking—NNGT must report on-air discussions of its campaign as in-kind contributions.  The administrative burden suggested by this order is stunning and interferes with the campaign’s ability to actually carry on its promotion of I-912.  Fisher also must be careful to ensure that it does not unwittingly become contributors to the campaign.  For these reasons, the Prosecutors’ actions and the Order are both unconstitutionally overbroad.

Due Process

The Prosecutors have delegated their prosecutorial authority to a private party with substantial political and financial interests in ensuring that I-912 does not pass.  While prosecutors need not be neutral and detached, a “scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” [61]   Thus, courts have found that “serious due process implications arise when the investigator and prosecutor have a personal financial interest in the outcome of the proceedings.” [62]   This is because a prosecutor’s obligation is not merely to win, but also to see that justice is done—and part of that consideration is an obligation to make sure that a defendant’s rights are scrupulously preserved. [63]   Even if a financially interested prosecutor does scrupulously adhere to the interests of justice, the appointment of an interested prosecutor calls into question the integrity of the entire process and cannot constitute harmless error. [64]

There is simply no way that the Foster Pepper law firm can objectively discharge the role of a prosecutor committed to doing justice when it has such a substantial political and financial stake in seeing that NNGT is embarrassed, harassed and pre-occupied with litigation and that I-912 goes down to defeat.  Foster Pepper’s involvement does not satisfy the requirement that the proceedings have “the appearance of justice” because “a prosecutor with conflicting loyalties presents the appearance of precisely the opposite.” [65]   Thus, the Prosecutors committed a due process violation when they delegated their authority to Foster Pepper in the first place.

Conclusion

In the end, this case is not about whether the people will vote to rescind the gas tax.  It is, instead, about whether our fundamental constitutional rights should remain free from interference by government officials and their private accomplices who simply want people to do what they are told without complaining about it.  If the Prosecutors are successful, next year it may be a pro-tax initiative that is prosecuted by an anti-tax prosecutor and our free speech rights will remain dependent on whether they live in a jurisdiction where the local prosecutor agrees with them.

This has been coming for some time.  In response to the latest round of federal “campaign finance” laws to reach the U.S. Supreme Court, Justice Clarence Thomas issued a prescient warning to all Americans when he dissented from a decision limiting the free speech rights of corporations and unions.  He wrote:

Now, supporters of laws [limiting the freedom of the press] need only argue that the press’ capacity to manipulate popular opinion gives rise to an appearance of corruption, especially when this capacity is used to promote a particular candidate or party.  After drumming up some evidence, laws regulating media outlets in their issuance of editorials would be upheld  . . . .  Hence, the freedom of the press, described as “one of the great bulwarks of liberty,” could be next on the chopping block. . . .  The press now operates at the whim of Congress. [66]

That day has come in western Washington, except that it has come through the actions of politically motivated local prosecutors and not through Congress.

Litigation Team

            The lead attorney is Institute for Justice Washington Chapter Executive Director Bill Maurer.  Also on the litigation team are IJ-WA Staff Attorneys Michael Bindas and Charity Osborn.

The Institute for Justice is a nonprofit public interest law firm that represents individuals, free of charge, when government has violated their essential liberties.  From its offices in Seattle, the Institute’s Washington Chapter litigates under the Washington Constitution to reinvigorate economic rights, preserve property rights, promote educational choice, and defend the right of Washingtonians to freely speak, write and publish on all subjects.  The national organization trains law students, lawyers and others in the tactics of public interest litigation with the goal of limiting governmental power and advancing individual freedom.  The Institute was founded in 1991.

For more information, or to arrange an interview with the Institute for Justice and its clients, please contact:

John E. Kramer
Vice President for Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
W: (703) 682-9320, ext. 205
E-mail: jkramer@ij.org

or

William R. Maurer
Executive Director
Institute for Justice Washington Chapter
811 First Avenue, Suite 625
Seattle, WA 98104
W: (206) 341-9300
C: (425) 941-7905
E-mail: wmaurer@ij.org



[1] See Cecil C. Kuhne, III, The Diminishing Sphere of Political Speech: Implications of an Overbearing Election Bureaucracy, 3 Geo. J.L. & Pub. Pol’y 189 (2005).

[2] Wash. Const. art. II, § 1; Washington Initiatives Now (WIN) v. Ripple, 213 F.3d 1132, 1134 (9th Cir. 2000).

[3] Wash. Const. art. II, § 1.  In Washington, the state government only operates pursuant to power delegated to it by the people.  See Wash. Const. art. I, § 1 (“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights”).

[4] “[I]nitiative and permissive referendum processes essentially establish the electorate as a law-making body coequal with the elected assembly . . . .”  Chip Lowe, Public Safety Legislation and the Referendum Power: A Reexamination, 37 Hastings L.J. 591, 594 (1986) (citing State ex rel. Durbin v. Smith, 102 Ohio St. 591, 133 N.E. 457 (1921) (Marshall, J., dissenting) (the people and the Legislature comprise “two distinct, concurrent legislative bodies, having power to deal with the same subject at the same time”)).  See also Kristen L. Fraser, Method, Procedure, Means, and Manner: Washington’s Law of Law-Making, 39 Gonzaga L. Rev. 447, 454 (2004) (“With the adoption of amendment 7 in 1912, the people conferred upon themselves a right to legislate; a right that appears all but coextensive with the legislature’s”). 

[5] WIN, 213 F.3d at 1134.

[6] Wash. Const. art. II, § 1(a).

[7] Id.

[8] http://www.washingtonvotes.org/Legislation.aspx?ID=38421.

[9] Final Bill Report ESSB 6103 (2005), available at http://www.leg.wa.gov/pub/billinfo/2005-06/Htm/Bill%20Reports/Senate%20Final/6103-S.FBR.htm.

[10] Andrew Garber, Gasoline tax fuels backlash, Seattle Times, July 24, 2005; John Carlson, The reason folks flocked to the gas-tax-repeal initiative, Seattle Times, Aug. 4, 2005.

[11] Keep Washington Rolling lists, among others, Boeing; Microsoft; Puget Sound Energy; the Washington State Labor Council; the Washington State Building and Construction Trades Council; Foster Pepper & Shefelman; Preston, Gates & Ellis; Futurewise; the Sierra Club; and WashPIRG as members.  http://www.keepwashingtonrolling.com/who.html. 

[12] Julia A. Youngs, Campaign speech ruling raises problem, Seattle Post-Intelligencer, July 13, 2005.

[13] RCW 42.17.080 and .090 require a campaign to report certain campaign contributions to the Washington State Public Disclosure Commission in regular reports.

[14] Complaint to Enforce Washington’s Fair Campaign Practices Act, Chapter 42.17 RCW (hereinafter, “Complaint.”  A copy is available from the Institute for Justice Washington Chapter.)  The Prosecutors also alleged that NNGT failed to report certain identifying information for persons who had made monetary donations to NNGT over the Internet arising from the fact that the payment service that NNGT used to collect early Internet donations would not supply all the information needed for full disclosure under the FCPA.  NNGT diligently worked to collect this information and provide it to the Public Disclosure Commission in order to comply as fully as possible with the disclosure requirements for donors.  In that regard, it appears that a significant portion of the donations lacking complete information were made anonymously by the private law firm to whom the Prosecutors delegated their prosecutorial authority in an effort to manufacture evidence against NNGT.  See Declaration of Rod Dembowski, counsel for the Prosecutors, dated June 22, 2005, at 3, para. 10, in which he admits to making purposefully anonymous Internet contributions to NNGT using his credit card.

[15] Complaint at 6, 9-10.

[16] RCW 42.17.360.

[17] RCW 42.17.400(2).

[18] RCW 42.17.360(4), .395(1).

[19] http://www.keepwashingtonrolling.com/who.html.

[20] Public Disclosure Form C3 for Keep Washington Rolling dated July 6, 2005, available at http://hera.pdc.wa.gov/wx/viewdoc_new.asp?strAppName=PDC&nZoomPercent= 100&nDocId=812019&nQRSeq=10&nCurrentIndex=1&nPageNum=1&UseIrc=no.

[21] See Washington State Treasurer, List of Fiscal Agents (Bond Registrar and Paying Agent), Financial Advisors, and Bond Counsel, at http://tre.wa.gov/BondDebt/fiscal.htm.

[22] Keep Washington Rolling Press Release dated June 22, 2005 available at http://www.keepwashingtonrolling.org/news.html.

[23] Order Granting Preliminary Injunction Requiring Compliance With Fair Campaign Practices Act, No. 05-2-01205-3, at 2 (July 1, 2005) (hereinafter, the “Preliminary Injunction Order”).

[24] Id. at 3.

[25] Anne Kim, Gas tax foes turn in nearly double the signatures needed for ballot, Seattle Times, July 8, 2005.

[26] Mills v. Alabama, 384 U.S. 214, 218-19 (1966).

[27] Brown v. Hartlage, 456 U.S. 45, 53 (1982).

[28] Collier v. Tacoma, 121 Wn.2d 737, 745 (1993) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).

[29] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[30] Buckley v. Valeo, 424 U.S. 1, 14-15 (1976).

[31] Id. (quoting Roth v. United States, 354 U.S. 476, 484 (1957).

[32] Public Disclosure Comm’n v. 119 Vote No! Committee, 135 Wn.2d 618, 626 (1998).

[33] Fritz v. Gorton, 83 Wn.2d 275, 297 (1974).

[34] Wash. Const. art. 1, § 5.

[35] State v. Coe, 101 Wn.2d 364, 375 (1984).

[36] Buckley v. Valeo, 424 U.S. 1, 15 (1976).

[37] NAACP v. Alabama, 357 U.S. 449, 460 (1958).

[38] Id.

[39] Stephanus v. Anderson, 26 Wn. App. 326, 335 (1980).

[40] Boy Scouts of Am. v. Dale, 530 U.S. 640, 647-48 (2000).

[41] Buckley, 424 U.S. at 25.

[42] Mills v. Alabama, 384 U.S. 214, 219 (1966).

[43] Id.

[44] 1 Annals of Congress 141 (1789-96).

[45] Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 537 (1997).

[46] Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256 (1974).

[47] NAACP v. Button, 371 U.S. 415, 433 (1963).

[48] State ex rel. Public Disclosure Comm’n v. Rains, 87 Wn.2d 626, 630 (1976).

[49] Cal. Teachers Ass’n v. State Bd. of Ed., 271 F.3d 1141, 1150 (9th Cir. 2001).

[50] Grayned v. City of Rockford, 408 U.S. 104, 109 (1972).

[51] Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967).

[52] State v. Glas, 147 Wn.2d 410, 421 (2002).

[53] The Federalist viii (Roy P. Fairfield ed., 1961).

[54] Seattle v. Bittner, 81 Wn.2d 747, 756 (1973).

[55] In re Marriage of Suggs, 152 Wn.2d 74, 84 (2004) (scope of anti-harassment order so vague as to constitute an unconstitutional prior restraint).

[56] Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558 (1976).

[57] State v. Coe, 101 Wn.2d 364, 374 (1984).

[58] RCW 42.17.105(8).

[59] State v. Pauling, 149 Wn.2d 381, 386 (2003).

[60] Seattle v. Huff, 111 Wn.2d 923, 925 (1989).

[61] Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50 (1980).

[62] Johnson v. Bd. of Governors of Registered Dentists, 913 P.2d 1339, 1349 (Okla. 1996); see also Cantrell v. Commonwealth, 329 S.E.2d 22, 26-27 (Va. 1985) (“A conflict of interest on the part of the prosecution in itself constitutes a denial of a defendant’s due process rights under art. I, § 11 of the Constitution of Virginia, and cannot be held to be harmless error”).

[63] Bhd. of Locomotive Firemen and Enginemen v. United States, 411 F.2d 312, 319 (5th Cir. 1969).

[64] See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987).

[65] Id. at 811-12 (citations omitted).

[66] McConnell v. FEC, 540 U.S. 93, 285-86 (2003) (Thomas, J., concurring in part and dissenting in part) (citations and quotation marks omitted).


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