Amicus Curiae Brief — Evergreen Freedom Foundation, dba Freedom Foundation, Petitioner v. Washington

Supreme Court briefMay 13, 2019

Ask Donna

What actually matters in this document.

Text

No. 18-1293

IN THE

___________

EVERGREEN FREEDOM FOUNDATION

D/B/A FREEDOM FOUNDATION,

PETITIONER,

STATE OF WASHINGTON,

RESPONDENT.

On Petition for Writ of Certiorari to the

Supreme Court of the State of Washington

__________

BRIEF FOR THE CATO INSTITUTE AND

THE INSTITUTE FOR FREE SPEECH

AS AMICI CURIAE SUPPORTING PETITIONER

__________

Allen Dickerson

Tyler Martinez

Zac Morgan

INSTITUTE FOR FREE SPEECH

124 S. West St., Suite 201

Alexandria, Virginia 22314

(703) 894-6800

adickerson@ifs.org

May 13, 2019

Ilya Shapiro

Counsel of Record

Trevor Burrus

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

QUESTION PRESENTED

Does Washington’s enforcement action under its

campaign-and-election regulation violate the First

Amendment when it is extended to cover legal fees for

litigation concerning a local ballot initiative process

where no campaign or election ever occurred?

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION AND

SUMMARY OF ARGUMENT............................... 1

ARGUMENT ................................................................ 5

THE FIRST AMENDMENT BROADLY

PROTECTS POLITICAL SPEECH ...................... 5

II. WASHINGTON’S LAW SERVES NO

RELEVANT GOVERNMENTAL INTEREST,

CHILLS SPEECH, DISCOURAGES

PRO BONO WORK, AND CREATES

SERIOUS LEGAL-ETHICS CONCERNS ........... 7

III. THE STATE COURT INCORRECTLY

APPLIED BUCKLEY TO POLITICAL

SPEECH OUTSIDE OF AN ELECTION........... 14

CONCLUSION .......................................................... 16

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Buckley v. Valeo, 424 U.S. 1 (1976) ......... 4, 6, 9, 11, 14

C & C Plywood Corp. v. Hanson,

583 F.2d 421 (9th Cir. 1978) .................................... 9

Citizens Against Rent Control/Coalition for Fair

Hous. v. Berkeley, 454 U.S. 290 (1981) .................... 9

Citizens United v. FEC, 558 U.S. 310 (2010) .... 2-3, 6-7

Emily’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ........ 9

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) ........ 4

McConnell v. FEC, 540 U.S. 93 (2003) ...................... 10

McCutcheon v. FEC, 572 U.S. 185 (2014) ................... 9

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) .................................................. 8

Mills v. Alabama, 384 U.S. 214 (1966) ................... 4, 6

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ........ 5

Nat’l Socialist Party v. City of Skokie,

432 U.S. 43 (1978) .................................................. 10

Roth v. United States, 354 U.S. 476 (1957)................. 3

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ..... 8

Walker v. City of Birmingham,

388 U.S. 307 (1967) ................................................ 11

Statutes

26 U.S.C. § 501(c)(3) .................................................... 8

28 U.S.C. § 1988(b) .................................................... 11

28 U.S.C. § 2412(d)(2)(A)(ii) ...................................... 11

Wash. Rev. Code § 35.17.260....................................... 2

Wash. Rev. Code § 35A.11.100 .................................... 2

Wash. Rev. Code Ann. § 42.17A.005 ..................... 8, 11

Rules

Wash. R.P.C. 1.2(b) .................................................... 13

Wash. R.P.C. 1.2(b), Comment 5 ............................... 13

Wash. R.P.C. 6.1 ............................................ 12, 13, 14

Other Authorities

American Civil Liberties Union, ACLU History:

Taking a Stand for Free Speech in Skokie,

https://tinyurl.com/kwqed9d .................................. 10

Brennan Ctr. for Justice, States Expand Definition

of Electioneering Communication to Guard

against Corruption (Feb. 7, 2013),

https://tinyurl.com/yxwnthxc ............................ 10-11

Brian J. Murray, “The Importance of Pro Bono

Work in Professional Development,”

Am. Bar Ass’n, Nov. 16, 2018,

https://tinyurl.com/y52u4nrm ................................ 12

David Lash, “4 Reasons Solo And Small Firm

Lawyers Can, And Often Do, Participate In Pro

Bono Work (And Debunking Other Pro Bono

Myths),” Above the Law, Oct. 13, 2016,

https://tinyurl.com/y4wvt42b ................................. 12

David. M. Rabban,

Free Speech in Its Forgotten Years (1997) ............... 7

Ilya Shapiro & Caitlyn W. McCarthy, So What If

Corporations Aren’t People?,

44 J. Marshall L. Rev. 701 (2011)............................ 6

John Samples, “Move to Defend: The Case against

the Constitutional Amendments Seeking to

Overturn Citizens United,” Cato Inst. Policy

Analysis No. 724 (Apr. 23, 2013) ............................. 5

The Federalist No. 10 (Madison) ................................. 6

The Federalist No. 51 (Madison) ................................. 5

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation dedicated to advancing individual

liberty, free markets, and limited government. Cato’s

Robert A. Levy Center for Constitutional Studies promotes the principles of limited constitutional government that are the foundation of liberty. To those ends,

Cato conducts conferences and publishes books, studies, and the annual Cato Supreme Court Review.

Founded by Bradley A. Smith, former Chairman of

the Federal Election Commission, the Institute for

Free Speech is a nonpartisan, nonprofit organization

that defends the rights to free speech, assembly, press,

and petition. It represents pro bono individuals and

civil society groups in cases raising First Amendment

objections to the regulation of core political activity.

This case concerns amici because it involves arbitrary and unjustified restrictions on political speech

and association, which lies at the core of First Amendment protection.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Few things could be more democratic than the

events that led to this case, and few things are less

democratic than the restrictions that the Washington

Supreme Court has now placed on socially beneficial

pro bono legal work in the Evergreen State.

Concerned citizens from three non-chartered municipalities were upset with how they were being

1 Rule 37 statement: All parties were timely notified of and

consented to this brief’s filing. No party’s counsel authored any of

this brief; amici alone funded its preparation and submission.

governed. Using the citizen-driven initiative process,

they followed procedures they thought could help

change the policies. They collected signatures from the

community and filed them alongside the proposed initiatives, believing that the non-charter cities would either adopt the initiatives or place them on the ballot,

as seems to be required by state law. See Wash. Rev.

Code §§ 35.17.260, 35A.11.100. As is more fully described in the petition, however, one city council did

nothing, one directed the city attorney to determine

the initiatives’ validity, and one declared them invalid.

Pet. at 6.

The concerned citizens then filed lawsuits arguing

that the cities’ actions were illegal. The Freedom Foundation provided pro bono legal work on these cases.

The cases were unsuccessful: no campaigns for the ballot initiatives ultimately occurred. Nevertheless, that

pro bono legal work to try to initiate a ballot initiative

has here been labeled a “campaign expenditure.”

But this Court’s well-delineated rationales for campaign restrictions cannot apply outside of campaigns

without running afoul of the First Amendment. The

Court has continually said that campaign restrictions

are restrictions on political speech and political assembly that are primarily justified by two state interests:

preventing quid pro quo corruption and citizens’ informational interests. See Citizens United v. FEC, 558

U.S. 310, 359 (2010) (“When Buckley identified a sufficiently important governmental interest in preventing

corruption or the appearance of corruption, that interest was limited to quid pro quo corruption.”); id. at 367

(“In Buckley, the Court explained that disclosure could

be justified based on a governmental interest in

‘provid[ing] the electorate with information’ about the

sources of election-related spending.”).

The quid pro quo corruption interest doesn’t apply

here because no matter how much pro bono legal work

is given to an initiative—one that never even made it

to the ballot—it’s unlikely to return the favor. And the

informational interest doesn’t apply because there was

no election, despite the concerned citizens’ valiant efforts to create one. Citizens were never asked to vote

on anything. No campaign was begun to try to influence citizens to vote in a certain way. Unless the informational interest has become completely unmoored

from elections—which would be a radical revision of

this Court’s precedents—then the Washington Supreme Court validated a vague and cumbersome campaign restriction that serves no legitimate purpose

while stifling and chilling democratic engagement.

The First Amendment broadly protects political expression to “assure [the] unfettered interchange of

ideas for the bringing about of political and social

changes desired by the people.” Roth v. United States,

354 U.S. 476, 484 (1957). Free speech fosters political

change, holds officials accountable, and otherwise sustains a healthy democracy. Whether at the federal,

state, or local level, citizen activism facilitates such interchanges and is thus vital to our democracy. Requiring private individuals to disclose their legal representation for a non-campaign impedes robust political

speech and hampers a politically active citizenry.

Moreover, as applied here, Washington’s regulatory scheme disproportionately favors certain types of

speakers and restricts political speech for everyone

else. Despite engaging in pervasive political activism,

unions are free to go without reporting their own

lawyers as expenditures, while non-politician citizen

activists are forced to disclose theirs. Such an intrusive

regulation subjects activists and their lawyers to public abuse and harassment, with no legitimate purpose

other than furthering a false “transparency.”

Perhaps most concerning, Washington’s law chills

speech for both citizen activists and lawyers. There is

“practically universal agreement” that the central purpose of the First Amendment was “to protect the free

discussion of governmental affairs.” Mills v. Alabama,

384 U.S. 214, 218 (1966). Speech is intimately related

to money and legal services, so disclosure rules effectively burden anyone who dares ask a lawyer’s help in

getting a measure placed on a ballot. Such burdens discourage political speech, disincentivize pro bono legal

work, and harm the valuable discourse that our political system needs to sustain itself.

This Washington law also leads to bizarre results

that do little to reduce corruption. If anything, it permits elected officials to reduce their accountability to

voters and may even allow corruption to fester. Sophisticated organizations with an abundance of resources

can easily navigate these laws, while concerned citizens are left with a distinct lack of “resources necessary for effective advocacy.” Buckley v. Valeo, 424 U.S.

1, 21 (1976) (per curiam). Moreover—and it feels

strange to have to spell this out—a ballot initiative

can’t be corrupted, at least not in the quid pro quo

sense. First Nat’l Bank v. Bellotti, 435 U.S. 765, 790

(1978) (“The risk of corruption perceived in cases involving candidate elections . . . simply is not present in

a popular vote on a public issue.”) No matter what you

do for a ballot measure, it will not love you back.

The Court has a chance here to clarify the scope

and purpose of campaign finance restrictions. States

cannot hinder political speech for individuals and pro

bono attorneys while favoring preferred groups, like

unions. Not only would curtailing Washington’s law

energize our democracy and reduce corruption, it is

also what the First Amendment requires.

ARGUMENT

I. THE FIRST AMENDMENT BROADLY

PROTECTS POLITICAL SPEECH

“[T]he central purpose of the [First Amendment]

was to assure a society in which ‘uninhibited, robust,

and wide-open’ public debate concerning matters of

public interest would thrive, for only in such a society

can a healthy representative democracy flourish.” N.Y.

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Free

speech “is needed for republican government” and “informs voters about the conduct of elected officials,

thereby helping voters to hold officials responsible at

election time.” John Samples, Move to Defend: The

Case against the Constitutional Amendments Seeking

to Overturn Citizens United, Cato Inst. Policy Analysis

No. 724 (Apr. 23, 2013), at 2. “Officials in power have

every reason to fear speech. It fosters change, not least

in elections. Elected officials have strong reasons to

find acceptable ways to suppress free speech.” Id. at 3.

The Founders believed that “a dependence on the

people is no doubt the primary control on the government.” The Federalist No. 51, at 316 (Madison) (Garry

Wills ed., 2003). The people, through elections and activism, keep politicians accountable to voters, which in

turn constrains government power. If people are punished for voicing political opinions, the Madisonian

nightmare of government without restraint becomes

possible. That’s why a “major purpose” of the First

Amendment is “to protect the free discussion of governmental affairs,” Mills, 384 U.S. at 218, by limiting

state interference with the marketplace of ideas, especially political ideas. Free and open debate is “integral

to the operation of the system of government established by our Constitution.” Buckley, 424 U.S. at 15.

Furthermore, the First Amendment protects political speech regardless of the nature or identity of the

speaker. Americans don’t lose their rights upon becoming activists, or coming together and forming associations, be they unions, non-profit advocacy groups, forprofit corporations, law firms, or any other group. See,

e.g., Ilya Shapiro & Caitlyn W. McCarthy, So What If

Corporations Aren’t People?, 44 J. Marshall L. Rev.

701, 707–08 (2011). Requiring lawyers and clients to

disclose their legal representation as a campaign expenditure—particularly when the “campaign” in question is simply a ballot measure proposal—impedes robust political speech and thus robs our democracy of

the vibrancy and dynamism it would otherwise have.

Indeed, restricting the liberty to engage in political

activism because such engagement somehow injures

the political system is fundamentally contrary to the

constitutional structure of rights and powers. As Madison wrote, “it could not be less folly to abolish liberty,

which is essential to political life, because it nourishes

faction, than it would be to wish the annihilation of air,

which is essential to animal life, because it imparts to

fire its destructive agency.” The Federalist No. 10, at

51–52 (Madison) (Garry Wills ed., 2003). And as this

Court held, “[i]f the First Amendment has any force, it

prohibits Congress from fining or jailing citizens, or

associations of citizens, for simply engaging in political

speech.” Citizens United, 558 U.S. at 313.

While states have the authority to regulate their

own elections, that regulation must be consistent with

the First Amendment’s protections. Certainly, states

can’t weaponize campaign-finance laws to restrict nonelection speech. Washington’s scheme runs counter to

the foundational principle that free and robust political debate—whose protection lies at the First Amendment’s core—is essential to our democracy. The

Founders simply did not want speech to be subject to

restrictions on financial support or services, which provide the means for political debate. See generally David. M. Rabban, Free Speech in Its Forgotten Years

(1997). Legal representation likewise facilitates political speech, especially when such representation allows

people to express their opinions and navigate the complexities of local ballot measures.

When individuals propose ballot measures, they

are engaging in political speech protected by the First

Amendment. Likewise, lawyers or firms that represent them or provide legal counsel are assisting in that

speech. Washington’s strange application of campaignfinance law to non-campaigns undermines a central

purpose of the First Amendment and merits review.

II. WASHINGTON’S LAW SERVES NO

RELEVANT GOVERNMENTAL INTEREST,

CHILLS SPEECH, DISCOURAGES PRO

BONO WORK, AND CREATES SERIOUS

LEGAL-ETHICS CONCERNS

One could be forgiven for reading the opinion below

and not realizing that the “independent expenditure”

reporting discussed throughout constituted pro bono

legal advice. The majority makes little mention of the

fact that legal services, provided for free, are at issue—

instead treating Washington’s application of its campaign-finance laws against Petitioner as if the legal

group were a run-of-the-mill political actor.

But this is hardly so. Petitioner merely acted, consistent with its tax status under 26 U.S.C. § 501(c)(3),

by representing its clients in a series of lawsuits designed to place initiatives on the ballot in a few municipalities. Pet. 6. Washington believes this action is the

same as an independent expenditure, and, over significant dissent, the state’s supreme court agreed. Pet.

App. A1-A34.

Treating pro bono legal services as the functional

equivalent of large financial expenditures from ideological, partisan, or self-interested entities was error.

While this Court has blessed the mandatory disclosure

of certain independent expenditures or large financial

contributions, “[i]n for a calf is not always in for a cow.”

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 358

(1995) (Ginsburg, J., concurring). Indeed, other parts

of Washington’s campaign-finance laws expressly recognize that legal services are different—generally exempting regularly employed legal services from being

reported as contributions for “candidate[s] or authorized committee[s] if the person paying for the services

is the regular employer of the individual rendering the

services and if the services are solely for the purpose

of ensuring compliance with state election or public

disclosure laws.” Wash. Rev. Code Ann. § 42.17A.005.

In the “campaign finance” context, “[d]isclosure

chills speech.” Van Hollen v. FEC, 811 F.3d 486, 488

(D.C. Cir. 2016) (Brown, J.). Yet, at least for large contributions and certain expenditures, this First

Amendment injury is tolerated because it deters quid

pro quo corruption and “helps voters to define more of

the candidates’ [or ballot question’s] constituencies.”

Buckley, 424 U.S. at 81. Neither interest is served by

forcing the reporting of pro bono services, while

chilling the provision of such services will impose significant harms.

As a threshold matter, there is no anti-corruption

interest at stake with a ballot measure. “Any regulation” invoking that interest “must . . . target” the “direct exchange of an official act for money.” McCutcheon

v. FEC, 572 U.S. 185, 192 (2014). Unsuccessfully

placed ballot measures, unlike elected candidates, cannot engage in this trade. See also Citizens Against Rent

Control/Coalition for Fair Hous. v. Berkeley, 454 U.S.

290, 297 (1981) (“Buckley[‘s anticorruption rationale]

does not support limitations on contributions to committees formed to favor or oppose ballot measures.”)

(emphasis in original); id. at 297 (“‘The state interest

in preventing corruption of officials, which provided

the basis for [this] Court’s finding in Buckley that restrictions could permissibly be placed on contributions,

is not at issue here.’”) (quoting with approval C & C

Plywood Corp. v. Hanson, 583 F.2d 421, 425 (9th Cir.

1978)); see also, Emily’s List v. FEC, 581 F.3d 1, 6 (D.C.

Cir. 2009) (Kavanaugh, J.) (“Importantly, the [Supreme] Court has emphasized that the anti-corruption

rationale is not boundless.”) (collecting cases).

Nor will the informational interest be advanced by

such forced disclosure. After all, in the context of representing political actors, a pro bono lawyer’s basis for

representation may be (and often is) an interest in the

rule of law, the vindication of liberties, or merely seeking to use her expertise to help those in need. It is not

inevitably a sign that the attorney agrees with the mission of their client. See, e.g., Nat’l Socialist Party v.

City of Skokie, 432 U.S. 43 (1978); see also American

Civil Liberties Union, ACLU History: Taking a Stand

for Free Speech in Skokie, https://tinyurl.com/kwqed9d

(noting that not all of the ACLU’s membership agreed

with taking the case, but nonetheless it demonstrated

the “ACLU’s unwavering commitment to principle”).

Yet, Washington insists that some pro bono legal work

for political efforts must now be reported as if that service demonstrates a substantial financial interest in

an election outcome. Far from informing the voters,

such reports more likely confuse the electorate by cluttering campaign reports with misleading references to

legal work instead of information about actual funders

and actual expenditures made to influence votes.

Since the state cannot demonstrate that infringing

the associational freedom of lawyers giving pro bono

legal advice would sufficiently advance either of these

important interests, its disclosure rules cannot survive

First Amendment scrutiny in this context.

The state supreme court’s decision, if left to stand,

will work real harm. It will discourage lawyers from

providing pro bono advice to clients in any jurisdiction

that seeks to clone Washington’s aggressive regime.2

2 When a speech regulation is upheld, it is not uncommon to see

similar—and even broader—laws taken up elsewhere. For example, after this Court upheld the “electioneering communications”

regulation in the Bipartisan Campaign Reform Act, McConnell v.

FEC, 540 U.S. 93 (2003), states created an avalanche of “electioneering communications” laws of their own. Brennan Ctr. for Justice, States Expand Definition of Electioneering Communication

to Guard against Corruption (Feb. 7, 2013), https://tinyurl.com/yxwnthxc (“Consequently, 25 states have adopted

Cf. Walker v. City of Birmingham, 388 U.S. 307, 345

(1967) (Brennan, J., dissenting) (“[O]ur overriding

duty [is] to insulate all individuals from the ‘chilling

effect’ upon exercise of First Amendment freedoms

generated by vagueness, overbreadth, and unbridled

discretion to limit their exercise”).

This dynamic will dry up necessary, and often vital,

legal services. Without legal guidance, many Americans may decide that exercising their First Amendment rights simply isn’t worth the expenditure of considerable time, energy, and resources.3 This chill will

only become more intense if citizens simply contemplating a political act—such as how to get a ballot

measure on the ballot—cannot even consult a lawyer

without having to run a gauntlet of campaign laws.

The Buckley Court cautioned that campaign finance restrictions “could have a severe impact on political dialogue if the limitations prevented candidates

and political committees from amassing the resources

necessary for effective advocacy.” 424 U.S. at 21. That

is the case here. Effective advocacy is harmed by laws

electioneering communication definitions, most of which extend

to media beyond the federal definition”).

3 Even the question of how to report the value of pro bono legal

advice is difficult. The reporting lawyer presumably cannot put

down “zero” as the hourly rate. Does the attorney simply choose

what she considers her hourly rate? Or must she figure out the

market rate in the area the committee operates, as lawyers must

when seeking fees in Civil Rights Act? 28 U.S.C. § 1988(b). Or

does the statutory rate of the Equal Access to Justice Act control?

28 U.S.C. § 2412(d)(2)(A)(ii). Given the financial penalties at

stake for misreporting, this is not a trivial question. Was. Rev.

Code Ann. § 42.17A.750 (“A person who violates any of the provisions of this chapter may be subject to a civil penalty of not more

than ten thousand dollars for each violation”).

that make it more difficult to obtain legal work to help

navigate the regulatory morass of campaign-finance

restrictions, or that makes it more difficult to challenge regulatory overreach. It limits the scope of activism and harms activists’ ability to seek legal counsel.

Beyond chilling speech for citizen activists, the

Washington law discourages lawyers from taking on

pro bono work and does violence to the canons of legal

ethics. Pro bono is perhaps “the profession’s highest

calling,” providing lawyers with the opportunity to

help clients who may not have the financial means to

retain counsel. David Lash, “4 Reasons Solo And Small

Firm Lawyers Can, And Often Do, Participate In Pro

Bono Work (And Debunking Other Pro Bono Myths),”

Above the Law, Oct. 13, 2016, https://tinyurl.com/y4wvt42b. Pro bono “is not only good for the

soul, but it can also be good for the career.” Brian J.

Murray, “The Importance of Pro Bono Work in Professional Development,” Am. Bar Ass’n, Nov. 16, 2018,

https://tinyurl.com/y52u4nrm. It offers young lawyers—and even seasoned ones—the opportunity to interact with clients, develop skills, and explore a wide

array of legal topics. Id. It is for good reason that

Washington’s Rules of Professional Conduct state that

“[e]very lawyer has a professional responsibility to assist in the provision of legal services to those unable to

pay.” Wash. R.P.C. 6.1.

Pro bono work provides numerous tangible benefits

for lawyers and their communities. Accordingly, many

state bars, firms, and law schools encourage or even

mandate pro bono service. Yet the Washington Supreme Court’s decision below does precisely the opposite, dissuading lawyers from offering advice on anything related to local politics, despite the state’s Rule

of Professional Conduct’s encouraging every attorney

to “aspire to render at least thirty (30) hours of pro

bono publico service per year.” Id.

When lawyers are forced to disclose their representation of politically active clients as if it were campaign

spending, it also intrudes on their privacy and could

expose them to hostility and harassment. It also contravenes a different part of Washington’s Rules of Professional Conduct, which holds that “[a] lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the

client’s political, economic, social or moral views or activities.” Wash. R.P.C. 1.2(b). Reporting risks conflating legal advice given to get a measure on the ballot

with the lawyer’s personal endorsement of the cause

itself. This works against Comment 5 to that Rule,

which clarifies that “[l]egal representation should not

be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of

popular disapproval. By the same token, representing

a client does not constitute approval of the client’s

views or activities.”

Washington wants to use its sovereign powers to

suggest precisely the opposite: lawyers giving free legal services to campaigns are, in fact, financial players

in the state’s political sphere and their legal advice is

coterminous with the work of citizen activists. Ironically, given that many legal issues are not resolved

with just a billable hour or two, Washington’s law will

likely make pro bono attorneys need to be four, five, or

even six-figure “campaign” spenders.

Lawyers faced with the proposition of being listed

as a significant spender in support of unpalatable or

unpopular groups of clients will inevitably balk at the

prospect of “assist[ing] in the provision of legal services to those unable to pay.” Wash. R.P.C. 6.1. In such

circumstances, attorneys, firms, and non-profits may

decide that pro bono work is more trouble than it’s

worth—especially if they are forced to decide between

opening themselves up to political attacks and falling

victim to complaints like the one filed against the petitioner here.

It is unfortunate that the prudent practice of some

political activism—particularly the process of seeking

to place a measure on the ballot—probably requires retaining counsel. Washington would rather risk driving

those actors from the debate by treating pro bono services as if they are large campaign expenditures. Doing so furthers no significant governmental interest,

chills speech, and goes against the grain of the legalethics regime adopted by the state’s own courts.

III. THE STATE COURT INCORRECTLY

APPLIED BUCKLEY TO POLITICAL

SPEECH OUTSIDE OF AN ELECTION

Our democracy is full of individuals and groups

commenting on political questions, speaking to politicians, proposing legislation, criticizing and praising officials, and much more. Such is the lifeblood of a democracy based on the free exchange of ideas. Because

restricting political donations and spending “necessarily reduces the quantity of expression by restricting

the number of issues discussed, the depth of their exploration, and the size of the audience reached,” Buckley, 424 U.S. at 19, this Court has tried to cabin those

restrictions to compelling state interests. In particular, the Court has tried to ensure that campaign restrictions are applied only to actual campaigns.

Whether speech in the form of money is a campaign

“contribution” or “expenditure” depends on if there is

even a campaign. The citizens here weren’t running for

elected office; they weren’t donating to candidates; and

they weren’t running a public information campaign to

would-be voters. They merely tried to get a measure

put on the ballot. And the pro bono legal work in question merely challenged arguably illegal actions by the

municipalities. This action should not justify the

state’s subjecting citizens and pro bono lawyers to the

full force of campaign-finance law. The citizens of

Washington have no more interest in knowing who’s

providing pro bono legal work outside of a campaign

than they do in knowing who put up a billboard criticizing the governor a week after the election is over.

Like contributions and expenditures, a law firm’s

pro bono representation of a citizen activist facilitates

political speech and is thus protected by the First

Amendment. Still, a lawyer representing a citizen pro

bono is not the same as a politician receiving a campaign contribution. The act of giving legal advice to citizens attempting—and failing—to put a measure on

the local ballot is not an electoral campaign by any definition other than the one Washington invented here.

Washington’s effort to redefine campaigns and contributions in this way is absurd and dangerous to First

Amendment freedoms. The Court should thus disregard the lower court’s construction of Buckley. The

mere act of putting a measure on a local ballot is not

subject to campaign finance law. Washington’s law,

which applies restrictions to non-electoral activism, is

an overreaching restriction on political speech.

CONCLUSION

The law at issue goes beyond allowable campaign

restrictions and endangers the system of pro bono legal representation. This Court should grant the petition to address these issues.

Respectfully submitted,