Are Republicans being denied First Amendment rights?

Legal issues raised by the Dino Rossi campaign last summer might come to shape Washington election law. If the state Republican Party wins two current lawsuits against the state, Washington's control of campaign spending will slip a little more.
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The King County Republican convention in Auburn at Green River Community College on April 12, 2008.

Legal issues raised by the Dino Rossi campaign last summer might come to shape Washington election law. If the state Republican Party wins two current lawsuits against the state, Washington's control of campaign spending will slip a little more.

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."

Would a party really send such blatantly partisan messages to its own supporters? Sure. These days, parties are forever "energizing the base," aka preaching to the choir, aka pandering to the wing-nuts who won't vote against you anyway.

The party doesn't claim that this year's communications qualify as protected issue advocacy. It does claim that they're protected speech. It argues that the state is violating the party's First Amendment right to say what it pleases to its own members. The party also claims that the state is violating its Fourteenth Amendment right to equal protection of the laws. Another organization — a labor union or a business — can say what it likes to its own members, the party argues in its complaint against the state. If the state keeps Republicans from doing likewise, it is denying them equal protection.

Basically, the Republicans are still whining about Washington's top-two primary. As you may remember, five years ago the 9th Circuit struck down Washington's 70-year-old blanket primary law, which let Democratic voters cross party lines to choose the Republicans' nominee, and vice versa. The court said the open primary violated party members' constitutional right of free association. It was their party, and they didn't have to let anyone else help choose their candidates. Earlier party challenges to the open primary had failed; this time, the U.S. Supreme Court's recent Jones decision, which tossed out California's blanket primary, gave the 9th Circuit little choice.

But the people — as opposed to the parties — had liked the blanket primary, and in 2004, the Legislature passed a bill to create a top-two system, in which the two primary candidates getting the most votes went on to the general election, regardless of party. They wouldn't appear on the primary ballot as party representatives, so voters could pick whomever they liked. The governor vetoed part of the bill. The people then adopted a top-two system by initiative. Inevitably, the parties challenged it. They lost. This time, the United States Supreme Court said parties have no right to decide who will and won't appear on a ballot — as long as the ballot doesn't say the candidates represent them, and doesn't mislead anyone about who does and doesn't represent a political party.

The court majority observed that in Jones, it had found that

the partisan California primary was not narrowly tailored to further [California's interests in promoting fairness, affording voters greater choice, increasing voter participation, and protection privacy] because a nonpartisan blanket primary, in which the top two vote getters advance to the general election regardless of party affiliation, would accomplish each of those interests without burdening the parties' associational rights. The nonpartisan blanket primary [i.e., top two] had "all the characteristics of the partisan blanket primary save the constitutionally crucial one: Primary voters [were] not choosing a party's nominee."

The parties had argued that without clear party labels on candidates, voters would be too dumb to know the difference. The court showed little patience with that one: The parties claimed

Voters will assume that candidates on the general election ballot are the nominees of their preferred parties. This brings us to the heart of [the parties'] case — and to the fatal flaw in their argument. At bottom, [their] objection [...] is that voters will be confused [...] they argue that even if voters do not assume that candidates on the general election ballot are the nominees of their parties, they will at least assume that the parties associate with, and approve of them. This, they say, compels them to associate with candidates they do not endorse, alters the messages they wish to convey, and forces them to engage in counterspeech to disassociate themselves from the candidates and their positions on the issues. We reject each of these contentions for the same reason: They all depend [...] on the possibility that voters will be confused.

But that, the court said, "is sheer speculation."

If the ballot made it look as if a candidate whom a party hadn't chosen was representing that party, the top-two law would be unconstitutional. But the Court laid out some possibilities for a top two primary ballot that would meet constitutional muster. All the state had to do was follow directions.

It has done so. Nevertheless, the Republican Party complains now that the "defendants, in implementing state law, have permitted persons not authorized by the Republican Party to appropriate its name and symbols to advance their political campaigns."

This may not be the best year to argue that people are pretending to be Republicans in order to get ahead. (Just a guess.) Be that as it may, will anybody buy the party's claim that the PDC's interpretation of the law violates its constitutional rights? The First Amendment argument may be plausible. The Fourteenth Amendment argument may not. Have Republicans, as a class, been so discriminated against that any governmental action placing them at a disadvantage requires strict judicial scrutiny? This is why we have a laugh test.


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About the Authors & Contributors

Daniel Jack Chasan

Daniel Jack Chasan

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.