When voters want to change how they’re being governed, the existing legal framework should make it easy for them to do so—or at least not get in their way. That’s what a group of concerned citizens from three cities in Washington state believed when they set out to reform unions. They tried to place their proposal on three municipal ballots, which involved collecting signatures from the relevant communities and filing them alongside the initiative.
State law seemed to require the cities to place these measures on the ballot or adopt them outright. None of the city councils did either of those things, so the citizens sued, arguing that the cities’ actions were illegal. The nonprofit Freedom Foundation represented them pro bono (free of charge), but they were unsuccessful: there were ultimately no campaigns for the ballot initiatives. Despite that legal failure and no election, unions filed a complaint against the Freedom Foundation for failing to disclose its pro bono legal work as a “campaign expenditure.”
The problem with labeling non‐campaign legal work as a campaign expenditure is fairly clear: there can be no campaign‐finance violation if there’s no campaign. Citizens were never asked to vote on anything, nor did anyone try to influence their votes. But the issue goes even deeper: When a law tries to make lawyers disclose work undertaken free of charge, it opens them up to harassment and political attack, and makes it more difficult for citizens to find legal representation, discouraging political speech for both.
The First Amendment broadly protects such speech, regardless of whether the speaker is a lawyer or concerned citizen. The Framers understood that robust political speech serves as one of the most important checks on government. A politically engaged citizenry acts as the immune system of a representative democracy, combating abuses of power and even preventing tyranny. That’s why the Supreme Court looks with a jaundiced eye on laws that “chill” political speech.
By placing arbitrary restrictions on political speech through overreaching disclosure requirements, Washington’s campaign‐finance law fits that description. Perhaps most concerning, it dissuades lawyers from taking on pro bono work, an overwhelmingly popular practice in the legal profession that many state bar associations strongly encourage, including Washington’s own.
And one more thing that moves this whole thing from the ridiculous to the absurd: Campaign‐finance laws exist to combat corruption, but a ballot initiative can’t be corrupted. It can’t offer a political favor in exchange for money or support. No matter what you do for it, it won’t love you back.
Washington’s attempt to redefine what a campaign is, and to broaden the idea of corruption to the point of incomprehensibility, all to justify punishing political activism should not go unchecked. Cato has partnered with the Institute for Free Speech in filing a brief supporting the Freedom Foundation’s petition to the U.S. Supreme Court. We ask the Court to take the case and clarify that a vague notion of “transparency” for its own sake can’t be used to stifle free expression.