In advance of the midterm elections, Washington, like most states, offered numerous programs encouraging voter turnout and urging residents to “get involved,” even featuring a voter pamphlet art contest. Such calls to civic duty reflect the principle that a healthy republic requires the active consent and participation of the governed.
But voting is just one means of civic involvement — and if state law is any reflection, Washington officials aren’t so enthusiastic about some other methods of political engagement.
Just ask retired naval officer Robin Farris of Puyallup.
In 2010, Farris, a political novice, became frustrated with media reports revealing how Pierce County Assessor-Treasurer Dale Washam ran his office. Rather than passively complain, she launched a recall attempt. Thanks to her efforts to become politically active, however, Farris became caught in a bureaucratic morass, facing large fines and even jail.
While attempting to navigate the state’s elaborate recall statutes — which include satisfying a judge that the grounds for recall have merit — Farris caught the attention of the Public Disclosure Commission. The unelected panel, charged with enforcing Washington’s campaign spending and disclosure laws, contended that by accepting free legal work to help her through the state-mandated litigation, Farris had broken a law limiting individual contributions in recalls to $800.
The cap ostensibly exists to prevent the appearance of corruption, but in application it impedes the ability of average citizens to meet the financial and legal demands of launching a recall campaign.
With assistance from the Institute for Justice, a public-interest law firm, Farris challenged the contribution limit. In 2012, she prevailed when a federal court ruled that the state failed to identify a “sufficiently important interest” to justify why the arbitrary limit should be enforced at the expense of her free-speech and association rights.
Undeterred, the commission attacked Farris on a second front. The panel threatened her for failing to list on disclosure forms the pro bono legal work she received to litigate the contribution limit at the federal court. Her “failure” could mean six-figure fines.
The commission contends that the Institute for Justice’s work on Farris’ case is the equivalent of a cash contribution to the recall effort. This argument has ramifications for scores of nonprofit groups that rely on tax-deductible donations to carry out their missions. If accepted, it would jeopardize the ability of organizations such as the IJ or the ACLU to provide legal support to people like Farris because such representation might be treated as political advocacy, which is prohibited by these organizations’ tax-exempt status.
In fact, the free legal aid Farris received had nothing to do with advocating for the removal of Washam and everything to do with ensuring that the government didn’t trample the rights of a citizen seeking to get involved in the political process. Far from fostering a welcoming environment for civic participation, the commission’s action amounts to an attempt to silence citizens such as Farris and the public-interest groups that offer their services to defend the rights of people like her against government encroachment.
A lawsuit filed by the Institute for Justice and now pending in Pierce County Superior Court challenges the PDC’s contention that free legal assistance in defense of an individual’s constitutional liberties constitutes an “in-kind” political contribution. The court has entered a preliminary injunction and the case is proceeding to a resolution.
In addition, perhaps the federal court’s decision on the donation cap — which, unfortunately, applied only to the Farris case, not to others who may face a similar predicament — will be a warning to the PDC and state lawmakers that the contribution limit in recalls, now $950, is on shaky constitutional footing.
“Politics,” Dwight D. Eisenhower once noted, “ought to be the part-time profession of every citizen who would protect the rights and privileges of free men.” Amen. In that spirit, public officials should do more than pay lip service to civic engagement and revisit election-related regulations that discourage and stymie citizen participation rather than encourage and enhance it.
John Kerr is a communications fellow with the Institute for Justice, a public-interest law firm in Arlington, Virginia.