432 P.3d 805
Wash.2019Background
- Evergreen Freedom Foundation (EFF) drafted sample local ordinances and ballot propositions; local residents in Sequim, Chelan, and Shelton used them and filed proposed initiatives with city clerks after collecting signatures.
- EFF attorneys provided pro bono legal representation in suits seeking court orders to put the measures on local ballots; the suits were dismissed and not appealed.
- EFF did not report the value of those legal services to the Public Disclosure Commission (PDC); the State filed an FCPA enforcement action alleging unreported independent expenditures under RCW 42.17A.255 and the definition of "ballot proposition" in RCW 42.17A.005(4).
- The superior court granted EFF's CR 12(b)(6) dismissal, finding ambiguity/vagueness; the Court of Appeals reversed, holding local initiatives filed with election officials qualify as "ballot propositions" once filed.
- The Washington Supreme Court affirmed the Court of Appeals: EFF's pro bono legal services were reportable; the statutes are not unconstitutionally vague and do not violate the First Amendment; the case remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (EFF) | Held |
|---|---|---|---|
| Whether local initiatives not yet on the ballot constitute "ballot propositions" for FCPA reporting | Definition includes local initiatives filed with an election officer and the 1975 amendment shows intent to cover pre-signature expenditures | For many local initiatives proponents file after gathering signatures, so the statute does not apply until a measure becomes a ballot "measure" placed on the ballot | The court held that a local initiative filed with an election official qualifies as a "ballot proposition" for reporting once filed, so EFF's services were reportable |
| Whether pro bono litigation/legal services in support of initiatives are reportable as "independent expenditures" | Expenditures in litigation to force or block ballot placement are "any expenditure... in support of... ballot proposition" and thus reportable | Reporting applies only to electioneering once a proposition is on the ballot; litigation is outside scope | Court held such litigation-support expenditures can be reportable independent expenditures under RCW 42.17A.255 |
| Whether RCW 42.17A.005(4) and RCW 42.17A.255 are unconstitutionally vague as applied | Statutes are sufficiently clear in context and provide notice of reporting obligations | Statutory language is ambiguous as applied to noncharter cities and thus unconstitutionally vague | Court held the statutes are not unconstitutionally vague as applied here |
| Whether disclosure requirements violate the First Amendment (association/privacy/speech) | Disclosure is substantially related to the important government interest of informing the electorate; exacting scrutiny satisfied | Disclosure burdens association/privacy and is not narrowly tailored in ambiguous statutory context | Court held FCPA disclosure requirements survive exacting scrutiny and do not violate the First Amendment |
Key Cases Cited
- Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) (upholding Washington disclosure regime and applying exacting scrutiny to disclosure rules)
- Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (disclosure requirements permissible though they may burden speech; exacting scrutiny applies)
- Voters Educ. Comm. v. Pub. Disclosure Comm'n, 161 Wash.2d 470 (Wash. 2007) (FCPA interpretation and constitutional principles for campaign disclosure; presumption of constitutionality limited where speech regulated)
- Buckley v. Valeo, 424 U.S. 1 (1976) (disclosure aids voter information and is a key governmental interest)
- Doe v. Reed, 561 U.S. 186 (2010) (upholding disclosure in ballot measure context under First Amendment/exacting scrutiny)