Opposition Brief — Voters Education Education Committee v. Washington State Public Disclosure Commission (No. 07-1153)

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73 [FILED

& MAY 2 ~ 2008

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OFFICE OF Tit CLERK

NO. 07-1153 SUPREN 2 CGURT, U.S.

IN THE SUPREME COURT OF

‘THE UNITED STATES

VOTERS EDUCATION COMMITTEE, ET AL.,

Petitioners,

Vv.

THE WASHINGTON STATE PUBLIC DISCLOSURE

COMMISSION, ET AL..,

Respondents.

ON PETITION FoR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF WASHINGTON

BRIEF IN OPPOSITION

ROBERT M. MCKENNA

Attorney General

Jeffrey D. Goltz William Berggren Collins

Deputy Attorney General Deputy Solicitor General

Counsel of Record

Linda A. Dalton

Sr. Assistant Attorney General 1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6245

TABLE OF CONTENTS

SEE PU aE aciiaisesdti cde icinashinaanheatbokschuananeigada aan 1

1 TR FEIN io isis ci ccscnsninsedsendsasacananes 1

2. Campaign Findnce Disclosure

Requirements In Washington.......................... 4

3. Proceedings Before The Public

Disclosure Commission.......................c.ce-0se200+- 7

A, Proceedings In The Trial Court....................... 9

The Washington Supreme Court’s

i in as Sacks susaeduaann 10

REASONS FOR DENYING THE WRIT................... 14

1. The Committee’s Claim That The

~ Decision Below Would Require

Disclosure With Respect to Issue

Advertisement Is Unjustified ........................ 15

2. There Is No Conflict Between The

Decision Below And The Cases Cited

Tay ie I se oicisiscsccccccackcceecdeccivacsass 19

3. The Decision Below Is Not

Inconsistent With Buckley ................scssscceseee 21

4. The Discussion Of Footnote 64 In

The Decision Below Does Not Merit

"RR I ccs sidicac Sec cadccclgsncdinne 23

5. The Decision Below Poses No Threat

To Free Speech, Let Alone A

PIED CE ici 25

CFE PRIIET iinecierssescckaases scsnercinnclabdenanbalieniebiaalaal 27

APPENDIX

Declaration Of Bruce Boram In

Support Of Plaintiffs’ Motion For

i cncacecensnaccennesousnse la

“Better” Television Spot Transcript............... 3a

alas ilk apicnicaiiecilali 4a

Wash. Rev. Code 42.17.010 (2004)................. 8a

Wash. Rev. Code 42.17.020 (2004) ................. 8a

Wash. Rev. Code 42.17.350..................seeseeee 12a

Wash. Rev. Code 42.17.395 (2004) ............... l4a

Wash. Rev. Code 42.17.610................. wéaiedile 15a

Wash. Rev. Code 42.17.640.............0..00000000... 16a

TABLE OF AUTHORITIES

Cases

Anderson v. Spear

356 F.3d 651 (6th Cir. 2004)....................cccccsseesees 21

Baggett v. Bullitt

te sss cacicadabseievasananiigianned 19, 20

Buckley v. Valeo

Pe BT pincitcnsesisncndnoncensctne 10-12, 15, 21-23

Center for Individual Freedom v. Carmouche

449 F.3d 655 (5th Cir. 2006)...............00000000.. 14, 20

Cramp v. Bd. of Pub. Instruction of Orange

County, Fla. :

I SN NO sick doers icidecannaiasebadodibcwandeisicns 19

Fed. Election Comm'n v. Wisconsin Right to

Life, Inc.

te ig eet 0 48. BEG C007)... 13—14, 17-19

McConnell v. Fed. Election Comm’n

640 U.S. 93 (2003) ...........00.......:00... 11-15, 17-18, 23

North Carolina Right to Life, Inc. v. Bartlett

168 F.3d 705 (4th Cir. 1999)...................... 14, 20-21

Washington State Republican Party v.

Washington State Pub. Disclosure Comm’n

141 Wash. 2d 245, 4 P.3d 808 (2000) ..12, 15-17, 19

Statutes

ae ee I aaccintes tietdanigesvcskgacsoiqenmensiainaciicnmecnadelin 4

BR Bree NR isisheisithnicisintisinsctcrcaainiecietn 2

La. Rev. Stat. §§ 18:1501.1(A), 18:1483(9)(a) ........... 25

Utah Code Ann. § 20A-11-101(26)(a), (31)................ 25

Wash. Rev. Code §§ 34.05.410—.494..0... cee ceeeeeeee 5

Wash. Rev. Code §§ 34.05.510-.598......0......: cece sees 5

Wash. Rev. Code § 42.17.010(1) (2004)... 4

Wash. Rev. Code § 42.17.010(10) (2004)... 5

Wash. Rev. Code § 42.17.010(8) (2004)................... 4,5

Wash. Rev. Code § 42.17.020(14) (2004) ........ccssssssssse 7

Wash. Rev. Code § 42.17.020(19) (2004).............00.0.... 7

Wash. Rev. Code § 42.17.020(33) (2004).....6, 7, 22-23

Wash. Rev. Code § 42.17.020(8) (2004).............0....c.0 7

Wash. Rev. Code §§ 42.17.030-.135......000000.00ccceceeeeee 4

Wash. Rev. Code § 42.17.040(1) (2004)..............ceceeeee 6

Wash. Rev. Code § 42.17.040(2)(a)—(g) (2004)............ 7

Wash. Rev. Code § 42.17.090(9)(b) (2004) ........sesse--0 9

Wash. Rev. Code § 42.17.350(1)..................ssscccceccrsess 5

Wash. Rev. Code § 42.17.360(5) ....................cececcccsseee 6

Wash. Rev. Code § 42.17.390(3) (2004)..........0........2.. 6

Wash. Rev. Code § 42.17.395(1) (2004)...............0.... 5

Wash. Rev. Code § 42.17.395(2) (2004).................0. 5

Wash. Rev. Code § 42.17.395(3) (2004)... 6

Wash. Rev. Code § 42.17.395(4) (2004)............ ee 6

Wash. Rev. Code § 42.17.395(5) (2004)...............-. 5

Wash. Rev. Code § 42.17.400(5) (2004) .........0....00.0.... 6

Wash. Rev. Code § 42.17.610—.640........... eee 4

Wyo. Stat. Ann. § 22-1-102(a)(xx) ............ eee eee ee 25

BRIEF IN OPPOSITION

The Attorney General of Washington, on

behalf of the Washington State Public Disclosure

Commission and the other respondents, respectfully

requests that the Court deny the petition for a writ

of certiorari in this case.

STATEMENT

In 2004 there was an election for all statewide

offices in Washington State. There were competitive

primary election contests for both the Republican

and Democratic nominations for attorney general.

There were two candidates seeking the Democratic

nomination—Deborah Senn and Mark Sidran.

Ms. Senn had held the elected office of State

Insurance Commissioner from 1993 to 2001, but she

did not hold public office while she was running for

attorney general. The primary election was held on

September 14, 2004.

1. The Advertisement

On September 1, 2004, the Voters Education

Committee (Committee) began running a 30-second

television advertisement entitled “Better” regarding

Ms. Senn. The advertisement ran for eight days and

was carried on three television stations in the Puget

Sound area. It was also run in Yakima and Spokane

in Eastern Washington.!

! During this period, the Committee ran a second

advertisement regarding Ms. Senn entitled “New.” Neither the

Public Disclosure Commission nor the Attorney General's Office

relied upon “New” in the enforcement proceeding against the

Committee.

The Committee owas incorporated in

Washington as a nonprofit, nonstock corporation.

The Committee was also exempt from federal income

tax as a § 527 corporation because it engaged in “the

function of influencing or attempting to influence the

selection, nomination, election, or appointment of

any individual to any Federal, State, or local public

office[.}” 26 U.S.C. § 527(e)(2). The Director of the

Committee was Bruce Boram.

In the context of the campaign for attorney

general, the Committee’s advertisement did not |

discuss a legislative issue that was currently before

‘the legislature or that was likely to be the subject of

legislative scrutiny in the future. Rather, Mr. Boram —

described the advertisement as “criticizing Deborah

Senn’s tenure as the Washington State Insurance

Commissioner ....” App. 2a { 2. In the audio

portion of the advertisement, the narrator asked:

“Who is Deborah Senn looking out for?’2 The

narrator went on to explain that: “As Insurance

Commissioner, Senn suspended most of a $700,000

fine against an Insurance company .. . in exchange

for the company’s agreement to pay for four new staff

members in Senn’s own office.” The narrator stated

that: “Senn even tried to cover up the deal from

State Legislators” and that “The Seattle Post

Intelligencer said Senn’s actions ‘easily could lead to

conflict-of-interest abuses’.”. The narrator concluded

by telling viewers that: “Deborah Senn let us down.”

And, the narrator invited viewers to “log on to learn

more.”

2 The text of the advertisement is set out in the

appendix at page 3a.

During the narration, the screen showed a

photograph of Deborah Senn, with the background

image of the Insurance Commissioner’s Office.

Superimposed on this image were the words:

“Suspended $700,000 fine to get four new staff

members in own office. Seattle Times 2/20/97.” The

background image changed to the state legislature.

The words over the new image stated: “Tried to

Cover-Up Deal from State Legislature. Seattle

Time[sic] 2/20/97.” The background image chanr °d

again to a Seattle Post Intelligencer Banner Head

with the text “‘easily could lead to conflict-of-interest

abuses’ Seattle Post Intelligencer 2/27/97.” At the

end of the advertisement, there was a “White flash”

and a web address: “www.senninsurancecrisis.com.”

The text concluded: “Paid for by Voters Education

Committee.”

Like the advertisement, and during the

candidate campaign, the website did notdiscuss a

current or future legislative issue. Rather, it

discussed Ms. Senn’s_ tenure as_ Insurance

Commissioner. The website had a photograph of

Ms. Senn along with the headlines: “Deborah Senn:

Insurance Commissioner 1993-2001” and “Deborah

Senn’s Policies Hurt the State.” The text went on to

explain that: “From 1993 until 2001, Deborah Senn

was entrusted with protecting the insurance

consumers of Washington State. On multiple

occasions, her questionable judgment has cost the

citizens of this state.” The text accused Ms. Senn of

adopting new rules that were so “poorly planned

3 The text of the website is set out in the appendix at

page 4a-7a.

[that] thousands in our state lost the ability to

purchase health insurance” and that it “took the

legislature to clean up her mess, and bring health

insurance choices back to the state.” It stated that

Ms. Senn’s management of the agency “lead the

National Association of Insurance Commissioners

(NAIC) to consider revoking’ the state's

accreditation.” The website contained parts of

articles from National Underwriter Life & Health

and the Insurance Journal from December 1995 and

January 2001, respectively, that were critical of

Ms. Senn. The website also contained links to other

articles.

2. Campaign Finance Disclosure Require-

ments In Washington

Congress prohibits corporations and labor

unions from using funds in their treasuries to

finance electioneering communications in elections

for federal office. 2 U.S.C. § 441b. Washington law

has no similar prohibition. However, Washington

does impose campaign contribution limitations* and

requires disclosure oof contributions and

expenditures. Wash. Rev. Code §§ 42.17.030-.135

implement the policy of the state that “political

campaign . . . contributions and expenditures be fully

disclosed to the public and that secrecy is to be

avoided.” Wash. Rev. Code § 42.17.010(1) (2004);

App. 8a.5

* Wash. Rev. Code § 42.17.610, .640; App. 15a, 15a-20a.

5 The campaign contribution limits set out in

Washington's disclosure law were inspired, in part, “by the

passage of the Federal Election Campaign Act of 1971” and the

legislature deemed it “desirable to have implementing

The state's campaign finance law is

administered by the Public Disclosure Commission

(PDC). The PDC consists of five members “appointed

by the governor, with the consent of the senate.”

Wash. Rev. Code § 42.17.350(1); App. 12a. The PDC

has the authority to “(a) determine whether an

actual violation of [the campaign finance law] has

occurred; and (b) issue and enforce an appropriate

order following such determination.” Wash. Rev.

Code § 42.17.395(1) (2004); App. 13a. In order to

determine whether there has been an actual

violation, the PDC is required to “hold a hearing

pursuant to the Administrative Procedure Act[.]’®

Wash. Rev. Code § 42.17.395(2) (2004); App. 14a.

The PDC’s orders finding a violation are subject to

judicial review under the Administrative Procedure

Act.’ Wash. Rev. Code § 42.17.395(5) (2004);

App. 14a—-15a. If the PDC concludes that a person

has violated the state’s disclosure requirements, it

may impose a civil penalty of up to $1,000 for a

single violation and $2,500 if it finds multiple

legislation at the state level.” Wash. Rev. Code § 42.17.010(8)

(2004); App. 8a. Disclosure of campaign contributions and

expenditures also implement the policy that “the public’s right

to know of the financing of political campaigns .. . far

outweighs any right that these matters remain secret and

private.” Wash. Rev. Code § 42.17.010(10) (2004); App. 8a.

6 The Administrative Procedure Act provisions covering

adjudicative proceedings are set forth in Wash. Rev. Code

§§ 34.05.410-.494.

7 The Administrative Procedure Act provisions covering

judicial review of administrative adjudicative proceedings are

set forth in Wash. Rev. Code §§ 34.05.510—.598.

violations. Wash. Rev. Code § 42.17.395(4) (2004);

App. 14a. These penalties have increased since 2004

In lieu of holding a hearing to determine if

there has been an actual violation, the PDC has the

authority to “investigate and report apparent

violations . . . to the appropriate law enforcement

authorities[.]” Wash. Rev. Code § 42.17.360(5); Pet.

18la. This includes the authority to “refer the

matter to the [state] attorney general{.]” Wash. Rev.

Code § 42.17.395(3) (2004); App. 14a. If the attorney

general brings an action to enforce the law, a court

may impose “a civil penalty of not more than ten

thousand dollars for each such violation.” Wash.

Rev. Code § 42.17.390(3) (2004); Pet. 185a—86a. The

court may also “award to the state all costs of

investigation and trial, including a_ reasonable

attorney’s fee[.]” Wash. Rev. Code § 42.17.400(5)

(2004); Pet. 188a. If the court concludes that the

violation is intentional, the “amount of the judgment,

which shall for this purpose include the costs, may be

trebled as punitive damages.” Wash. Rev. Code

§ 42.17.400(5) (2004); Pet. 188a.

Under the disclosure law, every “political

committee, within two weeks after its organization

or, within two weeks after the date when it first has

the expectation of receiving contributions or making

expenditures in any election campaign, whichever is

earlier, shall file a statement of organization with

the [PDC].” Wash. Rev. Code § 42.17.040(1) (2004);

Pet. 172a. The law defines “political committee” to

mean

“any person (except a candidate or an

individual dealing with his or her own funds

or property) having the expectation of

receiving contributions or making

expenditures in support of, or opposition to,

any candidate or any ballot proposition.”

Wash. Rev. Code § 42.17.020(33) (2004)

(emphasis added); Pet. 171a.

The term “candidate” means “any individual who

seeks nomination for election or election to public

office.” Wash. Rev. Code § 42.17.020(8) (2004);

App. 8a.

The statement of organization includes the

name and address of the committee, the name and

address of the committee’s officers or responsible

leader, the name and address of its treasurer

and financial institution in which it deposits its

funds, and the candidate or ballot proposition

it is supporting or opposing. Wash. Rev. Code

§ 42.17.040(2)(a)(g) (2004); Pet. 172a. Such a

political committee is required to report all

contributions® received and expenditures? made prior

to the time it filed its statement of organization and

periodically thereafter.

3. Proceedings Before The Public

Disclosure Commission

The staff of the PDC became aware of the

Committee’s television advertisements on September

1, 2004, when they began airing. The staff conducted

an investigation and concluded that the Committee

8 The definition of the term “contribution” is set out in

Wash. Rev. Code § 42.17.020(14) (2004), App. 9a—1la.

9 The definition of the term “expenditure” is set out in

Wash. Rev. Code § 42.17.020(19) (2004), App. 12a.

should register and file reports. On September 7,

2004, the PDC staff faxed a letter to Mr. Boram

directing him to register the Committee and

file reports. The staff gave Mr. Boram until

September 9, 2004, at noon, to comply. On the 9th,

the PDC received a letter from the Committee’s

lawyer stating that the “Better” ad was an issue

advertisement, and that the Committee’s speech was

protected by the First Amendment.

Since the primary election was set for

September 14, 2004, the PDC held a special meeting

on September 9, 2004. The Committee’s lawyer

participated by telephone. The staff presentation to

the PDC stated that the “Better” ad constituted

express advocacy in opposition to Ms. Senn’s

candidacy for the office of attorney general. After

discussing the matter, the PDC unanimously

determined that there was an apparent violation of

the disclosure law and voted to refer the matter to

the Attorney General’s Office.

On September 10, 2004, following the

initiation of an enforcement proceeding against it,

the Committee decided to register with the PDC and

disclose the contributions it received and the

expenditures it made. When asked why he had

decided to register, Mr. Boram told the press: “We

just decided it was becoming a distraction to what we

are trying to accomplish[.|”!2 On September 12,

2004, the Committee disclosed that it received two

contributions. One was in the amount of 1.5 million

10 Seattle Post Intelligencer article, September 11, 2004,

can be found at page 721 of the Washington Supreme Court

Clerk’s Papers.

dollars from the United States Chamber of

Commerce. The other was in the amount of $25 from

an anonymous donor.!! On September 13, 2004, the

Committee disclosed that it had made expenditures

of $1,402,608.64. In addition, it had liabilities in the

amount of $4,081.62.

4. Proceedings In The Trial Court

On September 10, 2004, the Attorney

General’s Office filed an action in Thurston County

Superior Court seeking civil penalties and injunctive

relief against the Committee. On the same day, the

Committee filed an action in King County Superior

Court (docket number 04-2-23551-1SEA) seeking

declaratory and injunctive relief against the PDC, its

members and Executive Director, and the Attorney

General. The PDC’s enforcement action was

transferred to King County (docket number 04-2-

33247-8SEA). The cases were assigned to the same

judge, but they were not consolidated. Subsequently,

Ms. Senn was permitted to intervene in the

Committee’s action (docket number 04-2-23551-

1SEA). Ms. Senn was never a party to the PDC’s

enforcement action.

The Attorney Generals Office moved for

partial summary judgment in the enforcement case

(docket number 04-2-33247-8SEA) and_ the

Committee moved for summary judgment in its

action (docket number 04-2-23551-1SEA). These

motions were heard on the same day. The trial court

11 The identity of a person making an aggregate

contribution of less than $25 need not be reported. Wash. Rev.

Code § 42.17.090(1)(b) (2004); Pet. 178a.

ruled in favor of the PDC. The trial court entered

separate judgments in the two cases. One granted

the PDC’s motion for partial summary judgment

(docket number 04-2-33247-8SEA). The other denied

the Committee’s motion for summary judgment and

dismissed the Committee’s action (docket number 04-

2-23551-1SEA). Pet. 56a. The Committee appealed

the dismissal of its action to the Washington

Supreme Court. The Attorney General’s Office and

the Committee agreed to stay the enforcement action

(docket number 04-2-33247-8SEA) pending the

outcome of the Committee’s appeal.

5. The Washington Supreme Court’s

Decision

The Washington Supreme Court affirmed the

trial court in a seven to two decision. There were

four main points in the court’s analysis. First, since

the disclosure statute imposed a restriction on

political speech, the court began by considering the

appropriate level of scrutiny. Since the Committee

was challenging a disclosure statute, the court did

not apply strict scrutiny. Relying on Buckley uv.

Valeo, 424 U.S. 1 (1976), the court stated that

“disclosure regulations must survive ‘exacting

scrutiny and that there must be a ‘relevant

correlation’ or ‘substantial relation’ between the

sovernmental interest and the information required

to be disclosed.” Pet. lla—12a. According to the

court, the “governmental interests sought to be

vindicated by disclosure requirements, such as

providing the electorate with information and

deterring corruption and the appearance of

corruption, are sufficiently important to outweigh

the possibility of infringement.” Pet. 12a (internal

quotation marks omitted). The court concluded that

“disclosure ~ requirements—certainly in most

applications—appear to be the least restrictive

means of curbing the evils of campaign ignorance

and corruption.” Pet. 12a.

Second, the court rejected the Committee’s

primary claim that the phrase “in support of, or

opposition to, any candidate” in the definition of

“political committee” was unconstitutionally vague.

Pet. 19a. The court stated that a statute is “void for

vagueness ‘if it is framed in terms so vague that

persons of common intelligence must necessarily

guess at its meaning and differ as to its application.”

Pet. 15a. The court held that the statute was not

vague. The majority stated that “the phrase ‘in

support of, or opposition to, any candidate’... is

significantly more precise than the phrase ‘relative

to a clearly identified candidate,’ which the Court

determined was vague in Buckley.” Pet. 19a. The

court also relied on McConnell v. Federal Election

Commission, 540 U.S. 93 (2003). In McConnell, this

Court held that the words “promote.” “oppose,”

“attack,” and “support” in the definition of “public

communications” “provide explicit standards for

those who apply them and give the person of

ordinary intelligence a reasonable opportunity to

know what is prohibited.” . Pet. 20a (quoting

McConnell, 540 U.S. at 170 n.64).

Third, the court rejected the Committee’s

claim that the definition of “political committee”

must be lhmited to a committee engaged in express

advocacy containing so called “magic words.” The

court explained that Buckley held “that the phrase

‘relative to’ was vague in that it failed to clearly

mark the boundary between permissible and

impermissible speech.” Pet. 16a (internal quotation

marks omitted). The majority explained that

Buckley applied a narrowing construction to the

statute so it applied “only to expenditures for

communications that expressly advocated the

election or defeat of a clearly identified candidate

fand that Buckley provided examples] such as ‘vote

for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for

Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” Pet. 16a.

The Committee argued that express advocacy was

limited exclusively to the words listed in Buckley.

However, the majority explained that McConnell

“rejected the argument that Buckley drew a

constitutionally mandated line between express

advocacy and so-called issue advocacy[.]” Pet. 17a.

Thus, the narrow reading of the statute in Buckley

did not “suggest[] that a statute that was neither

vague nor overbroad would be required to toe the

same express advocacy line.” Pet. 18a.

Finally, the court held that the “‘Better’

advertisement was clearly in opposition to Senn’s

candidacy.” Pet. 24a. In reaching this conclusion,

the court contrasted “Better” with the advertisement

at issue in Washingion State Republican Party v.

Washington State Public Disclosure Commission, 141

Wash. 2d 245, 4 P.3d 808 (2000) (WSRP). The court

explained that WSRP dealt with an “advertisement

list{ing] facts that indicated [Gary] Locke’s position

on fighting crime, such as voting ‘no’ on the ‘Three

Strikes, You’re Out law.’” Pet. 16a. WSRP held that

it would be unconstitutional to apply contribution

limits to the ad. According to the majority: “We

determined that the Locke advertisement was issue

advocacy because it attacked his stance on an issue

rather than his character.” Pet. 16a. In contrast, the

court held that “Better” was not the type of

advertisement that simply makes a neutral, factual

assertion which could be viewed as supporting by

some, but viewed as opposing by others, depending

on the viewer's opinion of the neutral assertion. Pet.

24a. Unlike the example, “‘Jones will cut hospital

funding,’ ‘Better’ expressly supplied viewers with a

conclusion to be drawn from the advertisement—

‘Deborah Senn Let Us Down.’” Pet. 24a (citation

omitted). The majority concluded that “[g]iven

Senn’s status—no longer incumbent insurance

commissioner and currently a candidate for attorney

general—the ‘Better’ advertisement was clearly in

opposition to Senn’s candidacy.” Pet. 24a (emphasis

added).!2

Two Justices dissented from the court’s

decision. In the view of the dissent, “[cJontent-based

restrictions on speech are _ presumptively

12 In light of its conclusion that the definition of political

committee was not vague, the court stated that it was not

required to decide whether “Better” constituted express or issue

advocacy and declined to reach the issue. Pet. 25a. However,

the majority's holding that the advertisement was “clearly in

opposition to Senn’s candidacy” (Pet. 24a), is an unmistakable

and implicit conclusion that the advertisement was the

functional equivalent of express advocacy. McConnell v. Fed.

Election Comm'n, 540 U.S. 93, 206 (2003); Fed. Election

Comm'n v. Wisconsin Right to Life, Inc., __ U.S. __, 127 S. Ct.

2652, 2667 (2007) (WRTL IJ).

unconstitutional and are thus subject to strict

scrutiny.” Pet. 37a. And, the dissent concluded that

the “statute’s ‘support or oppose’ language is not

‘sharply drawn.” Pet. 39a. The dissent criticized

the court’s reliance on McConnell’s conclusion that

the terms support and oppose were not vague.

According to the dissent, “McConnell [v. Fed. Election

Comm'n, 540 U.S. 93 (2003)] was referring only to

party speakers (such as political party operatives),

and not referring to the private, independent speech

at issue here.” Pet. 40a. Finally, the dissent relies

on Federal Election Commission v. Wisconsin Right

to Life, Inc.,__ U.S. __, 127 S. Ct. 2652 (2007) (WRTL

IT). According to the dissent, the “majority cannot

point to a particular phrase in the disputed

advertisements that is ‘susceptible of no reasonable

interpretation other than as an appeal to vote for or

against a specific candidate’ [under] WRTL II.”

Pet. 41a. :

REASONS FOR DENYING THE WRIT

The Court should deny the writ. The phrase

“support of, or opposition to, any candidate” in

Washington’s definition of political committee is

clear and straightforward. By its terms, it applies to

the full spectrum of express advocacy from so called

“magic words” to issue ads that are the functional

equivalent of express advocacy. It does not regulate

or threaten to regulate genuine issue advocacy as the

Committee asserts. Nor does the decision conflict

with Center for Individual Freedom v. Carmouche,

449 F.3d 655, 663 (5th Cir. 2006), or North Carolina

Right to Life, Inc. v. Bartlett, 168 F.3d 705, 712-13

(4th Cir. 1999). These decisions involve statutes

different from Washington’s that included language,

in addition to support or oppose, that rendered them

vague. For the same reason, and contrary to the

Committee’s claim, the decision below is not

inconsistent with Buckley. The Committee’s concern

with the Washington Supreme Court’s discussion of

footnote 64 in McConnell is misplaced. McConnell

and Buckley considered different statutory language.

And, as the decision below recognizes, in no sense did

McConnell overrule Buckley. Finally, the decision

below presents no threat to freedom of speech, let

alone one that is national in scope. At best, the

decision below would be nonbinding precedent

interpreting a statute that only used the words

“support or oppose.” It would have little value or no

value in interpreting the numerous statutes cited by

the Committee that involve other language.

i The Committee’s Claim That The

Decision Below Would Require

Disclosure With Respect to Issue

Advertisement Is Unjustified

The theme underlying the Committee’s

petition and the submissions of the amici curiae is

that an organization will be subject to Washington’s

disclosure requirements if it runs genuine issue’

advertisements. There is no b«sis for this claim. An ©

issue advertisement might “influence” or “relate to” a

candidate. However, Washington’s definition of

political committee does not use these vague terms.

Consistent with the decision below, under

Washington law, an advertisement that “supports or

opposes” a candidate is one where it is clear that the

advertisement is calling for a vote for or against the

candidate. WSRP, 141 Wash. 2d at 267, 4 P.3d at

820. The support or oppose standard does not reach

issue advertisements.

Consistent with the decision below, in WSRP,

the court defined express advocacy and held that it

would be unconstitutional to apply contribution

limits to issue advertisement. WSRP dealt with two

separate television advertisements run by the State

. Republican Party with regard to Gary Locke, a

county elected official as well as a candidate for

governor. The first advertisement discussed several

of Locke’s positions on criminal justice issues and

concluded “Tell Gary Locke that’s not what we call

getting tough on crime. Tell Gary Locke that we

deserve better.” WSRP, 141 Wash. 2d at 252, 4 P.3d

at 813.

In considering what constitutes express

advocacy that may be regulated by the PDC, the

WSRP explained that an advertisement was “express

advocacy when it is susceptible of no other

reasonable interpretation than as an exhortation to

vote for or against a candidate.” WSRP, 141 Wash.

_2d at 267, 4 P.3d at 820. It must be “clear that the

action [the speech] is calling for is the election or

defeat of a candidate. If reasonable minds could

differ as to whether the speech calls for a vote for or

against a candidate, or calls for some other kind of

action, the speech is not express advocacy.” IZd.

Thus, the question with the first Locke

advertisement was “whether it [was] susceptible only

to an interpretation that it called for such a vote.”

Id. at 271, 4 P.3d at 823. The court held that the

first Locke ad was an issue advertisement.

The Court held that the second Locke

advertisement constituted express advocacy. The

text of the second ad was the same as the first,

except that it ended with: “And now he wants to be

our governor? Gary Locke: another extreme liberal

we just can’t afford.” WSRP, 141 Wash. 2d at 273,

4 P.3d at 823. The court did not look for so-called

magic words.. Rather, the court concluded that the

second ad was express advocacy because the

“language in the second ad is unmistakable and

unambiguous in its meaning, and presents a clear

plea for the listener to take action to defeat

candidate Gary Locke. Reasonable minds could not

differ as to whether the second ad calls for a vote

against Locke.” Jd. at 273, 4 P.3d at 824 (citation

omitted).

The Washington standard to distinguish

_express advocacy from issue advocacy is fully

consistent with McConnell and WRTL IJ. In

McConnell, the Court rejected the notion advocated

by the Committee in this case that “the First

Amendment erects a rigid barrier between express

advocacy and so-called issue advocacy. That notion

cannot be squared with our longstanding recognition

that the presence or absence of magic words cannot

meaningfully distinguish electioneering speech from a

true issue ad.” McConnell, 540 U.S. at 193 (emphasis

added). To distinguish between express and issue

advocacy, McConnell introduced a new term—the

functional equivalent of express advocacy.

McConnell considered section 203 of the

Bipartisan Campaign Reform Act of 2002 (BCRA),

which extended the ban on corporate and union

expenditures for express advocacy, to all

electioneering communications. In considering the

facial argument that this expansion violated the

First Amendment, because it would ban corporations

and unions from paying for issue advertisements, the

Court explained that this “argument fails to

the extent that the issue ads broadcast during the

30- and 60-day periods preceding federal primary

and general elections are the functional equivalent of

express advocacy.” McConnell, 540 U.S. at 206

(emphasis added). According to the Court, the

“justifications for the regulation of express advocacy

apply equally to ads aired during those periods if the

ads are intended to influence the voters’ decisions

and have that effect.” Id. McConnell did not

precisely define what constituted the functional

equivalent of express advocacy.

The WRTL II plurality opinion explained what

constitutes the functional equivalent of express

advocacy. “[A]n ad is the functional equivalent of

express advocacy only if the ad is susceptible of no

reasonable interpretation other than as an appeal to

vote for or against a specific candidate.” WRTL I,

127 S. Ct. at 2667 (plurality opinion). This is an

“objective [test], focusing on the substance of the

communication rather than amorphous considera-

tions of intent and effect.” Jd. at 2666. However,

“[cJourts need not ignore basic background

information that may be necessary to put an ad in

context—such as whether an ad describes a

legislative issue that is either currently the subject of

legislative scrutiny or likely to be the subject of such

scrutiny in the near future.” Jd. at 2669 (internal

quotation marks omitted).

The test for distinguishing between express

and issue advocacy adopted by the Washington

Supreme Court in WSRP does not conflict with the

test articulated by the plurality opinion in WRTL II,

and the decision below is consistent with that test.

The Committee’s “Better” advertisement is suscepti-

ble of no reasonable interpretation other than as an

appeal to vote against Ms. Senn. As the decision

below stated, “the ‘Better’ advertisement was clearly

in opposition to Senn’s candidacy.” Pet. 24a.

2. There Is No Conflict Between The

Decision Below And The Cases Cited By

The Committee

The Committee claims that the decision below

conflicts with two decisions of the federal court of

appeals. There is no conflict because both decisions

involve statutes that contain language in addition to

the words “support” and “oppose” in Washington’s

law.'3 It was this additional language that the

courts held to be vague.

13 The same is true of the loyalty oath cases cited by the

Committee. It was language other than “support” or “oppose”

that the Court held to be vague. Cramp v. Bd. of Pub.

Instruction of Orange County, Fla., 368 U.S. 278, 286 (1961)

(‘The provision is completely lacking in these or any other

terms susceptible of objective measurement. Those who take

this oath must swear, rather, that they have not in the

unending past ever knowingly lent their ‘aid,’ or ‘support,’ or

‘advice, or ‘counsel’ or ‘influence’ to the Communist Party.

What do these phrases mean?”’); Baggett v. Bullitt, 377 U.S.

360, 367, 371 (1964) (There were two oaths considered in

Baggett. The 1955 oath was vague because a “teacher must

swear that he is not a subversive person: that he is not one who

commits an act or who advises, teaches, abets or advocates by

any means another person to commit or aid in the commission

In Center for Individual Freedom v.

Carmouche, 449 F.3d 655, 663 (5th Cir. 2006), the

definition of “expenditure” was “a purchase,

payment, advance, deposit, or gift, of money or

anything of value made for the purpose of

supporting, opposing, or otherwise influencing the

nomination or election of a person to public office.”

(Emphasis added.) The court’s analysis focused

solely on the word “influencing.” The court explained

that the “source of vagueness [in Buckley] was the

‘for the purpose of influencing’ language within

the definition of expenditure[.]” Id. at 664. And the

court concluded that since the statute linked “the

disclosure requirements for expenditures made by

independent individuals and groups to the same ‘for

the purpose of influencing language that the Court

confronted and upheld in Buckley, we can likewise

construe the CFDA in a way that saves it from

constitutional infirmity.” Jd. (emphasis added).

Similarly, in North Carolina Right to Life, Inc.

v. Bartlett, 168 F.3d 705, 712—13 (4th Cir. 1999), the

definition of “political committee” was “a combination

of two or more individuals, or any person, committee,

association, or organization, the primary or

incidental purpose of which is to support or oppose

any candidate or political party or to influence or

of any act intended to overthrow or alter, or to assist the

overthrow or alteration, of the constitutional form of

government by revolution, force or violence.” The 1931 oath

was vague because it “exacts a promise that the affiant will, by

precept and example, promote respect for the flag and the

institutions of the United States and State of Washington. The

range of activities which are or might be deemed inconsistent

with the required promise is very wide indeed.”).

attempt to influence the result of an election.”

(Emphasis added.) The crux of the plaintiffs concern

in Bartlett was the “influence or attempt to

influence” language. The plaintiff intended to run

issue advertisements and was concerned that it

would meet the definition of a “political committee”

because “issue advocacy may influence an election

even though it does not expressly advocate the

election or defeat of a particular candidate or party.”

Bartlett, 168 F.3d at 708 (emphasis added). The

court did not discuss or even hint that the support or

oppose language was vague.'4

3. The Decision Below Is Not Inconsistent

With Buckley

The Committee also argues that the decision

below is inconsistent with Buckley. According to the

Committee, “‘f[A]dvocating the election or defeat’ of a

candidate is, if anything, a more precise test than

the more subjective ‘support or oppose’ standard.

Yet Buckley held the advocacy formulation to be

vague ....” Pet. 14 (emphasis added) (alteration in

' The same is true in Anderson v. Spear, 356 F.3d 651,

663-65 (6th Cir. 2004), a case the Committee cites but does not

discuss. Anderson concerned a statute that established a

500-foot barrier around polling places in which electioneering

was prohibited. The definition of electioneering included “the

displaying of signs, the distribution of campaign literature,

cards, or handbills, the soliciting of signatures to any petition,

or the solicitation of votes for or against any candidate or

question on the ballot in any manner, but shall not include exit

polling.” Anderson, 356 F.3d at 663. Again, the court did not -

discuss or question the support or oppose language. Rather, the

court said that the statute was “vague, sweeping in, inter alia,

‘the displaying of signs, the distribution of campaign literature,

cards, or handbills....’” Id. at 665.

original). This argument fails because Buckley did

not find the language “advocating the election or

defeat” of a candidate to be vague. Instead, Buckley

focused on two other phrases that rendered the

statute vague.

The first vague phrase was “relative to.”

According to the Court, the “key operative language

of the provision limits ‘any expenditure . . . relative

to’ a clearly identified candidate.” Buckley, 424 U.S.

at 41 (emphasis added). The Court explained that

the “use of so indefinite a phrase as ‘Telative to’ a

candidate fails to clearly mark the boundary between

permissible and impermissible speech, unless other

portions of § 608(e)(1) make sufficiently explicit the

range of expenditures covered by the limitation.” Id.

at 41-42 (emphasis added).

The second vague phrase was “for the purpose

of . . . influencing.” The Court explained that

“fcjontributions’ and ‘expenditures’ are defined in

parallel provisions in terms of the use of money or

other valuable assets ‘for the purpose of .

influencing’ the nomination or election of candidates

for federal office. It is the ambiguity of this phrase

that poses constitutional problems.” Buckley, 424

U.S. at 77 (emphasis added) (footnote omitted). The

Court concluded that “fa]lthough the phrase, ‘for the

purpose of . . . influencing’ an election or nomination,

differs from the [phrase ‘relative to] it shares the

same potential for encompassing both issue dis-

cussion and advocacy of a political result.” Id. at 79.

Thus, the decision below is not inconsistent

with Buckley. The Washington definition of political

committee is limited to “support of, or opposition to,

any candidate[.]” Wash. Rev. Code § 42.17.020(33)

(2004), Pet. 171la. The definition does not use the

vague phrases “relative to” and “for the purpose of

influencing” that troubled the Court in Buckley.

4, The Discussion Of Footnote 64 In

The Decision Below Does Not Merit The

Court’s Review

The Committee argues that the Court should

grant the review because the Washington Supreme

Court relied on footnote 64 in McConnell to support

its conclusion that the terms support and oppose are

not vague. According to the Committee this “would

mean McConnell had, via footnote, overruled a

holding of Buckley[.}” Pet. 16. There is no basis for

this argument. Buckley dealt with the vague phrases

“relative to” and “for the purpose of influencing.” A

holding in McConnell that the words “support” and

“oppose” are not vague casts no shadow on Buckley at

all. And the decision below does not hold otherwise.

According to the Washington Supreme Court, the

“trial court’s implication that McConnell overturned

Buckley and erased the distinction between express

advocacy and issue advocacy does not accurately

reflect the holding of McConnell.” Pet. 25a. Rather,

the majority explained that “McConnell did clarify

that the distinction between express advocacy and

issue advocacy articulated in Buckley was not

constitutionally mandated but was instead a tool of

statutory construction.” Pet. 25a.

The Committee also argues that the words

“support” and “oppose” are not vague in McConnell

because the context is limited to political party

speakers. Pet. 16-17. McConnell stated:

“We likewise reject the argument

that § 301(20)(A)(Qiii) is unconstitutionally

vague. The words promote, oppose, attack,

and support clearly set forth the confines

within which potential party speakers must act

in order to avoid triggering the provision.

These words provide explicit standards for

those who apply them and give the person of

ordinary intelligence a reasonable opportunity

to know what is prohibited.” McConnell, 540

U.S. at 170 n.64 (emphasis added) (internal

quotation marks omitted).

It is certainly true that the statute in McConnell was

directed at party speakers. However, there is no

indication that the words were clear only because

party speakers are involved. Indeed, the next

sentence indicates that this is not the case.

McConnell went on to state: “This is particularly the

case here, since actions taken by political parties are

presumed to be in connection with election

campaigns.” Jd. (emphasis added). The Court did

not say that words were clear only because political

parties are involved. Rather, the presence of party

speakers was an additional reason why the language

was not ambiguous.

In any event, this question is not ripe for

review. The Committee points to no conflict

concerning the meaning of footnote 64. Nor is the

question of such significance that the Court should

depart from its usual practice of letting questions

percolate in the lower courts until a genuine conflict

develops.

5. The Decision Below Poses No Threat To

Free Speech, Let Alone A Nationwide

Threat

The Committee concludes its petition by

arguing that “the Washington court’s ruling creates a

nationwide threat to free speech.” Pet. 19. This

claim is surely overblown. The decision below holds

that because the Committee broadcast an

advertisement “clearly in opposition to Senn’s

candidacy” (Pet. 24a), it was required to register as a

political committee under Washington’s statute.

Such a decision poses no threat to free speech.

Moreover, unlike a decision of the federal court of

appeals, the decision below is only binding precedent

in Washington. It will have little relevance to

statutes that, unlike the Washington statute, include

other terms such as “relative to” and “for the purpose

of influencing.” As Appendix N to the petition makes

clear, many states have language beyond the words

support or oppose.!5 The decision below has little

'S See, e.g., La. Rev. Stat. §§ 18:1501.1(A), 18:1483(9)(a)

(requiring disclosure of persons “who make payments ‘for the

..purpose of supporting, opposing, or otherwise influencing’ an

election”) (Pet. 191a); Utah Code Ann. § 20A-11-101(26)(a), (31)

(‘political action committee” includes a group that makes

expenditures that “tend to influence, directly or indirectly, any

person to .. . vote for or against any candidate”) (Pet. 194a);

Wyo. Stat. Ann. § 22-1-102(a)(xx) (“political action committee”

includes any group organized “for the purpose of raising,

collecting, or spending money for use in the aid of, or otherwise

influencing or attempting to influence, directly or indirectly,

the election or defeat of candidates”) (Pet. 195a).

relevance for those laws. Even where another

jurisdiction’s -statute is limited to supporting or

opposing a candidate, the decision below is merely

nonbinding authority upon which another state court

may or may not rely.

The exaggerated nature of the threat claimed

by the Committee is also confirmed by the tepid

amicus support for the petition. The presence of the

Chamber as an amicus curiae does not demonstrate

that this is a nationally important case. Given

the Chambers funding of the Committee's

advertisement, its role in the underlying case and its

funding of this litigation, it is more akin to a second

brief filed by a party. See Chamber Br. 1 n.1. And

while we do not dispute that the Center For

Competitive Politics is interested in a more free and

competitive electoral process (Center Br. 1), if the

decision below were truly a nationwide threat to free

speech, one would expect to see a host of amicus

curiae briefs filed by organizations whose purpose is

to defend the First Amendment.

There is nothing in this case that justifies the

Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

RESPECTFULLY SUBMITTED.

ROBERT M. MCKENNA

Attorney General

Jeffrey D. Goltz William Berggren Collins

Deputy Attorney General Deputy Solicitor General

Linda A. Dalton a

Sr. Assistant Attorney General 1125 Washington Street SE

Olympia, WA 98504-0100

May 2, 2008 360-753-6245

APPENDIX

Honorable Richard A. Jones

Hearing Date: December 3, 2004

Hearing Time: 8:30 a.m.

With Oral Argument

IN THE SUPERIOR COURT OF THE STATE

OF WASHINGTON FOR KING COUNTY

VOTERS EDUCATION COMMITTEE,

a Washington nonprofit corporation;

BRUCE BORAM, an individual;

VALERIE HUNTSBERRY, an

individual,

Plaintiffs,

vs.

WASHINGTON STATE PUBLIC

DISCLOSURE COMMISSION;

MICHAEL CONNELLY, JEANETTE

WOOD, FRANCIS MARTIN, EARL

TILLY, and JANE NOLAND,

Commissioners of the Washington

State Public Disclosure Commission in

their individual capacities, VICKI

RIPPIE, Executive Director of the

Washington State Public Disclosure

Commission, in her individual

capacity, and CHRISTINE

GREGOIRE, Attorney General, of the

State of Washington in her individual

capacity,

Defendants,

and

DEBORAH SENN,

Intervenor.

NO. 04-2-

23551-1 SEA

DECLARATION

OF BRUCE

BORAM IN

SUPPORT OF

PLAINTIFFS’

MOTION FOR

SUMMARY

JUDGMENT

BRUCE BORAM declares under penalty of

perjury under the laws of the State of Washington as

follows:

i. I am one of the plaintiffs in this case

and am the Director of Voters Education Committee.

{ am competent to testify and make this declaration

of my personal knowledge.

2. Attached hereto as Exhibit A are true

and accurate copies of the text of the two television

advertisements criticizing Deborah Senn’s tenure as

the Washington State Insurance Commissioner that

Voters Education Committee aired between approx-

imately September 1, 2004, and September 8, 2004.

3. Attached hereto as Exhibit B is

a true and accurate copy of the www.senninsurance

crisis.com web site home page. All of the links listed

on the home page were to complete newspaper

articles regarding Ms. Senn’s tenure as Insurance

Commissioner or the insurance crisis in Washington

State.

SIGNED this 3 es of November, 2004 in

Kirkland, Washington.

fate. S|. ea

BRUCE BORAM

[page]

Exhibit A

[page]

“Better — B” — 30 second TV

Video

Words on screen in special

effect.

Photo of DS, background image

of Insurance Commissioner

Office.

Words on screen:

Suspended $700,000 fine to

get four new staff members

in own office. Seattle Times

2/20/97

Background change to State

Leg.

Words on screen:

Tried to Cover-Up Deal

from State Legislature.

Seattle Timef[sic] 2/20/97

Newspaper background. SPI

Banner Head. Pull quotes

from article: |

“easily could lead to

conflict-of-interest abuses”

Seattle Post Intelligencer

2/27/97

White flash. Words on Screen:

ww w.senninsurance

crisis.com

Paid for by Voters Education

Committee

[page]

Audio

Who is Deborah Senn

looking out for?

As Insurance

Commissioner, Senn

suspended most of a

$700,000 fine against

anInsurance »

company ...in

exchange for the

company’s agreement

to pay for four new

staff members in

Senn’s own office.

Senn even tried to

cover up the deal

from State

Legislators.

The Seattle Post

Intelligencer said

Senn’s actions “easily

could lead to conflict-

of-interest abuses”

Deborah Senn let us

down... log onto

learn more.

B Boram

Exhibit B

Tew

2004 Status Update

Insurance

Crisis

wo-ee Menu

H Citizens Lose Small Business

ome . oe

Options Crisis

Deborah Senn: Insurance Commissioner 1993~2001

Deborah Senn’s Policies Hurt the State

[photo of

Deborah

Senn]

From 1993 until 2001, Deborah Senn vas

Washington State. On multiple occasions,

this state.

On entering the office she unilaterally

the citizens. So poorly planned were these

purchase health insurance. It took the

insurance choices back to the state.

By 1999, Senn’s management of the

Commissioners (NAIC) to _ consider

to withdraw from the organization. Democrat

Senn’s eight year reign. One of his top

with the NAIC and repairing the political

Washington State

Insurance Report

State Loses

Accreditation Recent News

entrusted with protecting the insurance consumers of

her questionable judgment has cost the citizens of

enacted new insurance rules she claimed were to help

rules that thousands in our state lost the ability to

legislature to clean up her mess, and bring health

department lead the National Association of Insurance

revoking the state’s accreditation. Senn’s response was

Mike Kreidler was elected to the office following

priorities was returning the state to good standing

damage Senn had left behind.

Rate Increases: :

Average Consumers Pay the Price For Senn’s Rules

National Underwriter Life & Health-December 25, 1995

Several insurers said a three-month ‘open enrollment’

period in 1994, mandated by the now-defunct 1993

Health Services Act, burdened them with an influx of

high-risk individuals with costly, pre-existing

conditions. But Ms. Senn pointed to the repeal of

community-based rating during the state’s May 1995

legislative session for fueling rate increase requests

from insurers for their individual policies.

‘We are seeing the effects of the repeal of cost-

containment

[page]

measurers. Some argued that the free market would

take care of it, but it didn’t, Ms. Taylor-McGhee said.