The Institute for Free Speech filed a lawsuit in federal court against Washington state Attorney General Bob Ferguson and the members, a former member, and executive director of the Washington Public Disclosure Commission (PDC). The state’s campaign finance laws infringe on the First Amendment right to offer pro bono legal services in PDC enforcement matters.
The Institute wants to represent Tim Eyman, a prominent tax-cut activist, on appeal in a case where a court ruled that he, personally, is a “continuing political committee.” It says the treatment of an individual citizen as a regulated political committee has serious and far-reaching implications for First Amendment rights. Yet the Institute fears representing Eyman could force it to register with the state, file reports, and expose the identities of its confidential donors as if it were involved in an election campaign.
In the past, the PDC has aggressively pursued nonprofits that provide pro bono representation to political committees. The PDC previously argued in court that the Institute for Justice’s pro bono representation of a recall campaign constituted an in-kind contribution to the recall. The agency lost that case but never published guidance reflecting the court’s decision. To avoid a similar dispute and safeguard its supporters’ privacy, the Institute for Free Speech petitioned the PDC to order that representing Eyman in court would not subject it to the state’s Fair Campaign Practices Act (FCPA).
While considering the petition, the PDC’s general counsel suggested that the Institute could be deemed an “incidental” committee and forced to register and report to the state. The PDC’s final order also failed to address central issues in the petition, leaving the Institute and its supporters vulnerable if it represents Eyman or others accused of FCPA violations. According to the Institute’s complaint, the order “practically invites Tim Eyman’s many political enemies to file third-party campaign-finance complaints should IFS provide pro bono legal services for defense in a prosecution under the FCPA or on appeal.”
The Institute’s lawsuit argues that the state’s interference in the provision of pro bono legal services is unconstitutional under the First Amendment.
“Long ago, the Supreme Court recognized that the First Amendment rights of speech and association protect the right to solicit pro bono clients and advocate for the civil rights of those clients in our courts, without burdensome interference by state authorities,” the complaint explains. “Although the Supreme Court recognizes a governmental interest in disclosing the identity of donors to electoral campaigns, no such interest attaches to the provision of pro bono legal services provided in a defense posture during a campaign-finance enforcement action or appeal.”
The Institute for Free Speech is not able to represent Tim Eyman until there is a final ruling that doing so will not trigger the state’s campaign finance laws. Consequently, the Institute is asking the court to issue summary judgment in the case.
United States Ninth Circuit Court of Appeals
United States District Court for the Western District of Washington
Washington Public Disclosure Commission