The PDC argues here that, in cases brought pursuant to 42 U.S.C. § 1983 (“Section 1983”), Washington law requires it to treat pro bono legal services provided to those involved with campaigns as “in-kind” contributions that may be regulated and restricted by state governments. The PDC’s interpretation is a direct assault on the provisions of Section 1983 and the attorneys’ fee statute, 42 U.S.C. § 1988 (“Section 1988”), which authorize an attorneys’ fee award to those who prevail in vindicating their constitutional or civil rights.2 The PDC’s position opposing an award of attorneys’ fees in this case undermines these provisions of federal law, directly interferes with the ability of campaigns to access the courts, frustrates the ability of law firms to provide pro bono assistance to their clients, and cripples the ability of lawyers and their clients to pursue civil rights objectives through litigation. Amici are aware of no other regulatory agency in the country that has adopted the PDC’s position. If this Court were to accept the PDC’s argument, it would severely limit the applicability of Sections 1983 and 1988 and insulate the PDC from many constitutional challenges.
The PDC makes this radical and unprecedented position in the course of asserting that there are “special circumstances” that would render an award of attorneys’ fees to Appellee Family PAC “unjust.” Specifically, it argues that Family PAC did not report pro bono legal representation in its Section 1983 case as an “in-kind” contribution to the campaign. Appellants’ Opening Br. 23-25. The district court correctly concluded that the award of attorneys’ fees “further[s] the purposes of [42 U.S.C.] § 1988” and rejected the PDC’s “special circumstances” argument. ER 9-10 (quotation omitted). This Court should do the same.
If this Court were to consider the PDC’s argument, however, this Court must recognize that the PDC’s position raises serious issues of federal constitutional law. Although couched as a routine matter of disclosure, the PDC’s interpretation is more than that. If accepted, it would block the ability of Washington citizens to access pro bono legal services in constitutional challenges to the PDC’s actions. Put another way, while the immediate issue here is whether the PDC can avoid paying fees, the PDC’s policy would have the end result of weakening the vitality of Section 1983 litigation.