Washington State Sued for Violating First Amendment Right to Provide Pro Bono Legal Services

State hampers free legal representation for Tim Eyman and other Washingtonians

August 2, 2021   •  By IFS Staff   •  
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Tacoma, WA – The Institute for Free Speech, a national nonprofit organization that provides pro bono legal services, today 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 group says 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.

“Washington has no business hampering pro bono legal services for those needing a lawyer to represent them in court,” said Institute for Free Speech President David Keating. “This is a clear violation of the First Amendment. It hampers our access to the courts and prevents our attorneys from representing or speaking to Washingtonians, like Tim Eyman, who need an attorney when threatened by the PDC.

“When we asked the PDC if we could provide free legal representation in a court case, it failed to answer our questions. One of the commissioners we’re suing even admitted the law was ‘clearly unclear.’”

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.

The case is Institute for Free Speech v. Jarrett in the United States District Court for the Western District of Washington. To read the complaint, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

IFS Staff

https://www.ifs.org/author/ccp-staff/

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