The U.S. Supreme Court yesterday, February 23, 2015, declined to review a challenge to a Washington law that makes it illegal to contribute more than $950 to a recall campaign. The 9th U.S. Circuit Court of Appeals struck the law down as unconstitutional as applied to the plaintiffs in this specific case, but refused to consider whether the law was unconstitutional on its face. The U.S. Supreme Court’s decision yesterday not to review the 9th Circuit’s decision regarding the facial constitutionality of the law means that it remains unresolved whether it can be constitutionally applied to other recall campaigns in Washington.
The case concerned the efforts of retired Naval officer Robin Farris and the political committee she founded, Recall Dale Washam (RDW), which sought to recall the then-Assessor-Treasurer of Pierce County, Wash., in 2011. At the time, Washington law made it illegal for any recall committee to accept, and any donor to contribute, more than $800 towards the effort (that limit has since been raised to $950). Farris and the committee were joined in the suit by the law firm of Oldfield & Helsdon, PLLC, which wanted to provide more than $800 in in-kind contributions to the campaign through the form of legal representation during the complex and legally mandated court proceedings to get the recall question on the ballot.
Unable to raise enough money to effectively promote the recall, RDW, Farris, and Oldfield & Helsdon sued the Washington Public Disclosure Commission (PDC)—the state agency that enforces the contribution limit—claiming that the contribution limit violated their First Amendment rights. The plaintiffs were represented by the Institute for Justice (IJ), a public interest law firm that litigates on behalf of grassroots campaigns across the country. A federal district court in Tacoma preliminarily enjoined the PDC from enforcing the cap against RDW and the 9th U.S. Circuit Court of Appeals upheld the injunction, concluding that the law was likely unconstitutional.
The case was remanded to the district court, which concluded that the law was unconstitutional as applied to Farris, RDW, and Oldfield & Helsdon, but the court refused to consider whether the law could be constitutionally applied to anyone else. Given that the time to collect enough signatures to recall the Assessor-Treasurer had long since passed and the campaign had not been able to get the measure on the ballot—thanks, in large part, to the contribution limit—the district court’s order meant little. The plaintiffs appealed the district court’s decision to the 9th Circuit, which also refused to consider the facial validity of the law. The plaintiffs then sought intervention from the U.S. Supreme Court.
“The failure of the U.S. Supreme Court to take this case and require the federal courts to consider a properly presented claim means that recall proponents will be forced to go to court every time they wish to exercise their First Amendment rights,” said Bill Maurer, managing attorney of IJ’s Washington state office. “Every court that has looked at a law like Washington’s has concluded that it was unconstitutional in all applications. Unfortunately, limiting the remedy in this case to just the plaintiffs means that speakers in future recall campaigns in Washington will have to sue first and hope to speak later.”
Robin Farris said, “It is difficult enough to conduct a recall of any elected official in this state. I’m disappointed that the Supreme Court did not recognize that Washington’s law makes it practically impossible for people to recall misbehaving public officials.”
Jeff Helsdon of Oldfield & Helsdon said, “The supporters of recall campaigns now have no idea whether they can support these campaigns and actually have a chance that the campaign will succeed. The federal courts should not be sidestepping important issues and leaving a broadly unconstitutional law like this in place.”
“The U.S. Supreme Court’s failure to resolve this issue means that speakers and the government have no clear guidance on whether one can contribute more than $950 to a recall campaign in Washington,” explained Paul Avelar, an IJ attorney. “This kind of judicial abdication helps no one and simply lets the government continue to enforce a law that is clearly unconstitutional.”
The U.S. Supreme Court’s order came just three days after a Pierce County Superior Court judge rejected the PDC’s efforts to classify IJ and Oldfield & Helsdon’s representation in the federal civil rights lawsuit to strike down the limit as a “campaign contribution.” Had that effort stood, the government could have restricted and regulated civil rights representation as if it were a campaign contribution, including expressly capping it. The U.S. Supreme Court’s decision yesterday does not affect the Pierce County judge’s decision.
“Ultimately, the constitutionality of Washington’s cap on contributions to recall campaigns will have to be resolved either by the Washington Legislature or by the courts because the case law clearly indicates that this limit violates the First Amendment,” Maurer concluded. “Until then, speakers in recall campaigns will have to exercise their rights piecemeal. But the government should be clear about one thing—this law will eventually fall in its entirety.”