Are Republicans being denied First Amendment rights?

Earlier this year, after the Public Disclosure Commission (PDC) reached the conclusion that the Republican Party violated Washington's campaign finance law, the Attorney General's office filed a suit on behalf of the PDC. The state's elected Republican Attorney General, Rob McKenna, recused himself.

A day before that suit was filed, the Republican Party had already sued the state, claiming that the PDC interprets the campaign finance law — which was passed by initiative in 1992 — in a way that violates its Constitutional guarantees of free speech and equal protection. As interpreted by the PDC, the law imposes an "asymmetric burden on political speech and political association." The courts won't hear the cases until 2010.

Whether the Republicans win, lose, or draw, the future probably won't be all that different from the present, just as the present isn't all that different from the past. Three decades of post-Watergate campaign finance laws don't seem to have taken the money out of politics.

For nearly all that time, efforts to regulate campaign fundraising and expenditures have had to dance around the U.S. Supreme Court's 1976 Buckley decision. We already knew that money talked. The Buckley ruling basically took that old adage a step further and decided that money is talk. The more you spend, the more you're talking. If government restricts the money spent on expression, it limits the quantity of political speech. After Buckley, "issue expression" — talking about ideas, rather than explicitly advocating the election of a candidate — is just about impossible to regulate.

The state Republican Party has already won a suit against the PDC on that one. Twelve years ago, when Bill Clinton was demolishing Bob Dole at the head of the ticket and incumbent Governor Gary Locke was trouncing conservative Ellen Craswell on the state level, the Republicans put out a commercial exhorting viewers to "Tell Gary Locke." The argument:

"When 76 percent of voters said yes to 'Three Strikes, You're Out,' Gary Locke said no. When people asked for more cops on the streets in King County, Gary Locke said no. But Gary Locke said 'yes' to a plan which would give self-esteem training to prostitutes and pay for a newsletter for those employed in the 'sex industry,' a plan so ridiculous that both Republicans and Democrats condemned it."

The PDC had ruled that Republican expenditures for the commercial violated campaign finance law. The state Supreme Court disagreed. It said that as the PDC applied them to the Republican Party, the state's "campaign financing laws are unconstitutional [...] in that they improperly restricted individuals and groups from making contributions to the party for the party to spend on issue advocacy political speech."

In a headnote to the decision, the court explained:

Issue advocacy critical of an incumbent candidate for public office is constitutionally protected irrespective of whether the speech relates to the candidate's capacity as an elected official or to the candidate's capacity as a candidate. The fact that the advertisement is partisan, negative in tone, and appears prior to an election does not render it any the less issue advocacy for First Amendment purposes.

This year's cases involve three brochures sent out during August's primary election campaign. One criticized Democratic Governor Chris Gregoire for raising taxes. Another attacked her for letting sexual predators and other criminals out on early release. A third said: "Even as Washington families struggle to make ends meet, in Christine Gregoire's office, it's raining money." All three concluded by urging people to "Vote for Dino Rossi and our whole state Republican team in the August 19 primary."

The state says in its complaint that the party paid $212,966.65 to a firm called On Target for the three mailings. The money came from the party's exempt fund. The state says that was illegal.

Washington's political parties maintain both exempt and non-exempt funds. The non-exempt funds, used for routine campaign expenses, are subject to contribution limits. The exempt funds aren't subject to contribution limits, but they can't be used for campaigns. Most of the uses to which they can legally be put are non-partisan. They can, for example, be tapped to register voters. But they can also be tapped for the party's own "internal organization" and "fund raising."

The state says the mailings in question were part of a campaign. The party says they were merely internal messages to its own members. The party defines its membership not only as Republican party officials, participants in Republican caucuses or conventions, and Republican office holders, but also as people "who have contributed [money] in the last three calendar years," people "who self-describe themselves as always voting for the Republican candidate," and "other individuals who have affirmatively stated their intentions to become members of the Washington State Republican party, and who have demonstrated support of the party, its candidates and programs."