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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

73 [FILED

& MAY 2 ~ 2008
oo |

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

lV

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.

10

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

11

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

13

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).

14

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,

15

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

16

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.

17

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

18

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).

19

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

20

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.”).

21

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.

22

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:

24

“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.

25

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).

26

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.

27

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

la

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

2a

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]
xx
[page]

“Better — B” — 30 second TV

3a

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

4a

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

5a

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.

6a

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.

More Articles...
1995: Health Services Act of 1993 Repealed

Washington Needs an Appointed Insurance
Commissioner

Mandates Increase Costs and Reduce Access to
Affordable Health Insurance

7a

Washington State Insurance Commissioner Seeks to
Resolve Past Political Bickering

Insurance Journal - January 16, 2001:

Newly elected Washington Insurance Commissioner
Mike Kreidler wants to regain some powers stripped
away by lawmakers peeved at predecessor Deborah
Senn, Knight Ridder/Tribune Business News service
has reported. Kreidler reportedly plans to also seek
the re-accreditation of the office and expand
availability of lower-cost drugs.

His predecessor, the controversial Senn, who lost a
bid for the U.S. Senate in November, had alienated
many legislators

[page]

during her eight years in office. The news service
reported Kreidler expects to mend those relations
over the next few months. Last year, lawmakers
took away the insurance commissioner’s power to
regulate health insurance premiums, a direct slap at
then-Commissioner Senn, according to a quote in the
news service report that was attributed to Kreidler.
And the commissioner’s office can no longer conduct
hearings using its own administrative law judges, he
was reported as saying.

Read Full Article...

Sponsored by the Voters Education Committee —
info@senninsurancecrisis.com

8a

Wash. Rev. Code 42.17.010 Declaration of
policy. It is hereby declared by the sovereign people
to be the public policy of the state of Washington:

(1) That political campaign and lobbying
contributions and expenditures be fully disclosed to
the public and that secrecy is to be avoided.

(8) That the concepts of disclosure and
limitation of election campaign financing are
established by the passage of the Federal Election
Campaign Act of 1971 by the Congress of the United
States, and in consequence thereof it is desirable to
have implementing legislation at the state level.

(10) That the public’s right to know of the
financing of political campaigns and lobbying and the
financial affairs of elected officials and candidates far
outweighs any right that these matters remain
secret and private.

Wash. Rev. Code 42.17.020 Definitions.

(8) “Candidate” means any individual who
seeks nomination for election or election to public
office. An individual seeks nomination or election
when he or she first:

(a) Receives contributions or makes
expenditures or reserves space or facilities with
intent to promote his or her candidacy for office;

(b) Announces publicly or files for office;

9a

(c) Purchases commercial advertising space or
broadcast time to promote his or her candidacy; or

(d) Gives his or her consent to another person
to take on behalf of the individual any of the actions
in (a) or (c) of this subsection.

(14)(a) “Contribution” includes:

(i) A loan, gift, deposit, subscription,
forgiveness of indebtedness, donation,
advance, pledge, payment, transfer of funds
between political committees, or anything of
value, including personal and professional
services for less than full consideration;

(ii) An expenditure made by a person in
cooperation, consultation, or concert with, or
at the request or suggestion of, a candidate, a
political committee, or their agents;

(iii) The financing by a person of the
dissemination, distribution, or republication,
in whole or in part, of broadcast, written,
graphic, or other form of political advertising
prepared by a candidate, a political committee,
or its authorized agent;

(iv) Sums paid for tickets to fund-
raising events such as dinners and parties,
except for the actual cost of the consumables
furnished at the event.

(b) “Contribution” does not include:

(i) Standard interest on money
deposited in a political committee’s account;

10a

(ii) Ordinary home hospitality;

(iii) A contribution received by a
candidate or political committee that is
returned to the contributor within five
business days of the date on which it is
received by the candidate or political
committee;

(iv) A news item, feature, commentary,
or editorial in a regularly scheduled news
medium that is of primary interest to the
general public, that is in a news medium
controlled by a person whose business is that
news medium, and that is not controlled by a
candidate or a political committee;

(v) An internal political communication
primarily lmited to the members of or
contributors to a political party organization
or political committee, -or to the officers,
management staff, or stockholders of a
corporation or similar enterprise, or to the
members of a labor organization or other
membership organization;

(vi) The rendering of personal services
of the sort commonly performed by volunteer
campaign workers, or incidental expenses
personally incurred: by volunteer campaign
workers not in excess of fifty dollars personally
paid for by the worker. “Volunteer services,”
for the purposes of this section, means services
or labor for which the individual is not
compensated by any person;

lla

(vii) Messages in the form of reader
boards, banners, or yard or window signs
displayed on a person’s own property or
property occupied by a person. However, a
facility used for such political advertising for
which a rental charge is normally made must
be reported as an in-kind contribution and
counts towards any applicable contribution
limit of the person providing the facility;

(viii) Legal or accounting services
rendered to or on behalf of:

(A) A political party or caucus
political committee if the person paying
for the services is the regular employer
of the person rendering such services; or

(B) A candidate or an authorized
committee 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.

(c) Contributions other than money or its
equivalent are deemed to have a monetary value
equivalent to the fair market value of the
contribution. Services or property or rights
furnished at less than their fair market value for the
purpose of assisting any candidate or political
committee are deemed a contribution. Such a
contribution must be reported as an_ in-kind
contribution at its fair market value and counts
towards any applicable contribution limit of the
provider.

12a

(19) “Expenditure” includes a payment,
contribution, subscription, distribution, loan,
advance, deposit, or gift of money or anything of
value, and includes a_ contract, promise, or
agreement, whether or not legally enforceable, to
make an expenditure. The term “expenditure” also
includes a promise to pay, a payment, or a transfer of
anything of value in exchange for goods, services,
property, facilities, or anything of value for the
purpose of assisting, benefiting, or honoring any
public official or candidate, or assisting in furthering
or opposing any election campaign. For the purposes
of this chapter, agreements to make expenditures,
contracts, and promises to pay may be reported as
estimated obligations until actual payment is made.
The term “expenditure” shall not include the partial
or complete repaymen* by a candidate or political
committee of the principal of a loan, the receipt of
which loan has been properly reported.

Wash. Rev. Code 42.17.350 Public
disclosure commission—Established—Member-
ship—Prohibited activities—Compensation,
travel expenses. (1) There is hereby established a
“public disclosure commission” which shall be
- composed of five members who shall be appointed by
the governor, with the consent of the senate. All
appointees shall be persons of the highest integrity
and qualifications. No more than three members
shall have an identification with the same political
party.

(2) The term of each member shall be five
years. No member is eligible for appointment to
more than one full term. Any member may be

13a

removed by the governor, but only upon grounds of
neglect of duty or misconduct in office.

(3) During his or her tenure, a member of the
commission is prohibited from engaging in any of the
following activities, either within or outside the state
of Washington:

: (a) Holding or campaigning for elective
office;

(b) Serving as an officer of any political
party or political committee; -

(c) Permitting his or her name to be
used in support of or in opposition to a
candidate or proposition;

(d) Soliciting or making contributions to
a candidate or in support of or in opposition to
any candidate or proposition;

(e) Participating in any way in any
election campaign; or

(f) Lobbying, employing, or assisting a
lobbyist, except that a member or the staff of
the commission may lobby to the limited
extent permitted by RCW 42.17.190 on
matters directly affecting this chapter.

(4) A vacancy on the commission shall be
filled within thirty days of the vacancy by the
governor, with the consent of the senate, and the
appointee shall serve for the remaining term of his or
her predecessor. A vacancy shall not impair the
vowers of the remaining members to exercise all of
the powers of the commission.

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(5) Three members of the commission shall
constitute a quorum. The commission shall elect its
own chair and adopt its own rules of procedure in the
manner provided in chapter 34.05 RCW.

(6) Members shall be compensated in
accordance with RCW 43.03.250 and in addition
shall be reimbursed for travel expenses incurred
while engaged in the business of the commission as
provided in RCW 43.03.050 and 43.03.0060. The
compensation provided pursuant to this section shall
not be considered salary for purposes of the
provisions of any retirement system created
pursuant to the general laws of this state.

Wash. Rev. Code 42.17.395 Violations—
Determination by commission—Procedure.
(1) The commission may (a) determine whether an
actual violation of this chapter has occurred; and (b)
issue and enforce an appropriate order following
such determination.

(2) The commission, in cases where it chooses
to determine whether an actual violation of this
chapter has occurred, shall hold a hearing pursuant
to the Administrative Procedure Act, chapter 34.05
RCW, to make such determination. Any order that
the commission issues under this section shall be
pursuant to such hearing.

(3) In lieu of holding a hearing or issuing an
order under this section, the commission may refer
the matter to the attorney general or other
enforcement agency as provided in RCW 42.17.360.

(4) The person against whom an order is
directed under this section shall be designated as the

15a

respondent. The order may require the respondent
to cease and desist from the activity that constitutes
a violation and in addition, or alternatively, may
impose one or more of the remedies provided in
*RCW 42.17.390(1) (b), ©), (a), or (e): PROVIDED,
That no individual penalty assessed by the
commission may exceed one thousand dollars, and in
any case where multiple violations are involved in a
single complaint or hearing, the maximum aggregate
penalty may not exceed two thousand five hundred
dollars.

(5) An order issued by the commission under
this section shall be subject to judicial review under
the Administrative Procedure Act, chapter 34.05
RCW. If the commission's order is not satisfied and
no petition for review is filed within thirty days as
provided in RCW 34.05.542, the commission may
petition a court of competent jurisdiction of any
county in which a petition for review could be filed
under that section, for an order of enforcement.
Proceedings in connection with the commissicn’s
petition shall be in accordance with RCW 42.17.397.

Wash. Rev. Code 42.17.610 Findings. The
people of the state of Washington find and declare
that:

(1) The financial strength of certain
individuals or organizations should not permit them
to exercise a disproportionate or controlling influence
on the election of candidates.

(2) Rapidly increasing political campaign
costs have led many candidates to raise larger
percentages of money from special interests with a
specific financial stake in matters before state

16a

government. This has caused the public perception
that decisions of elected officials are being
improperly influenced by monetary contributions.

(3) Candidates are raising less money in small
contributions from individuals and more money from
special interests. This has created the public
perception that individuals have an insignificant role
to play in the political process.

Wash. Rev. Code 42.17.640 Limits
_ specified—Exemptions. (1) No person, other than
a bona fide political party or a caucus political
committee, may make contributions to a candidate
for a state legislative office that in the aggregate
exceed *five hundred dollars or to a candidate for a
state office other than a state legislative office that
in the aggregate exceed *one thousand dollars for
each election in which the candidate is on the ballot
or appears as a write-in candidate. Contributions
made with respect to a primary may not be made
after the date of the. primary. However,
contributions to a candidate or a _ candidate’s
authorized committee may be made with respect to a
primary until thirty days after the primary, subject
to the following limitations: (a) The candidate lost
the primary; (b) the candidate’s authorized
committee has insufficient funds to pay debts
outstanding as of the date of the primary; and (c) the
contributions may only be raised and spent to satisfy
the outstanding debt. Contributions made with
respect to a general election may not be made after
the final day of the applicable election cycle.

(2) No person, other than a bona fide political
party or a caucus political committee, may make

17a

contributions to a state official against whom recall
charges have been filed, or to a political committee
having the expectation of making expenditures in
support of the recall of the state official, during a
recall campaign that in the aggregate exceed *five
hundred dollars if for a state legislative office or *one
thousand dollars if for a state office other than a
state legislative office.

(3)(a) Notwithstanding subsection (1) of this
section, no bona fide political party or caucus
political committee may make contributions to
a candidate during an election cycle that in
the aggregate exceed (i) *fifty cents multiplied
by the number of eligible registered voters in
the jurisdiction from which the candidate is
elected if the contributor is a caucus political
committee or the governing body of a state
organization, or (ii) “twenty-five cents
multiplied by the number of registered voters
in the jurisdiction from which the candidate is
elected if the contributor is a county central
committee or a legislative district committee.

(b) No candidate may _ accept
contributions from a county central committee
or a legislative district committee during an
election cycle that when combined with
contributions from other county central
committees or legislative district committees
would in the aggregate exceed *twenty-five
cents times the number of registered voters in
the jurisdiction from which the candidate is
elected.

18a

(4) (a) Notwithstanding subsection (2) of
this section, no bona fide political party or
caucus political committee may make
contributions to a state official against whom
recall charges have been filed, or to a political
committee having the expectation of making
expenditures in support of the state official,
during a recall campaign that in the aggregate
exceed (i) “fifty cents multiplied by the
number of eligible registered voters in the
jurisdiction entitled to recall the state official
if the contributor is a caucus political
committee or the governing body of a state
organization, or (ii) “twenty-five cents
multiplied by the number of registered voters
in the jurisdiction from which the candidate is
elected if the contributor is a county central
committee or a legislative district committee.

(b) No state official against whom recall
charges have been filed, no authorized
committee of the official, and no political
committee having the expectation of making
expenditures in support of the recall of a state
official may accept contributions from a county
central committee or a legislative district
committee during an election cycle that when
combined with contributions from other county
central committees or legislative district
committees would in the aggregate exceed
*twenty-five cents multiplied by the number of
registered voters in the jurisdiction from
which the candidate is elected.

(5) For purposes of determining contribution
limits under subsections (3) and (4) of this section,

19a

the number of eligible registered voters in a
jurisdiction is the number at the time of the most
recent general election in the jurisdiction.

(6) Notwithstanding subsections (1) through
(4) of this section, no person other thar an
individual, bona fide political party, or caucus
political committee may make _ contributions
reportable under this chapter to a caucus political
committee that in the aggregate exceed “*five
hundred dollars in a calendar year or to a bona fide
political party that.in the aggregate exceed *two
thousand five hundred dollars in a calendar year.
This subsection does not apply to loans made in the
ordinary court of business.

(7) For the purposes of RCW 42.17.640
through 42.17.790, a contribution to the authorized
political committee of a candidate, or of a state
official against whom recall charges have been filed,
is considered to be a contribution to the candidate or
state official.

(8) A contribution received within the twelve-
month period after a recall election concerning a
state office is considered to be a contribution during
that recall campaign if the contribution is used to
pay a debt or obligation incurred to influence the
outcome of that recall campaign.

(9) The contributions allowed by subsection (2)
of this section are in addition to those allowed by
subsection (1) of this section, and the contributions
allowed by subsection (4) of this section are in
addition to those allowed by subsection (3) of this
section.

20a

(10) RCW 42.17.640 through 42.17.790 apply
to a special election conducted to fill a vacancy in a
state office. However, the contributions made to a
candidate or received by a candidate for a primary or
special election conducted to fill such a vacancy shall
not be counted toward any of the limitations that
apply to the candidate or to contributions made to
the candidate for any other primary or election.

(11) Notwithstanding the other subsections of
this section, no corporation or business entity not
doing business in Washington state, no labor union
with fewer than ten members who reside in
Washington state, and no political committee that
has not received contributions of ten dollars or more
from at least ten persons registered to vote in
Washington state during the preceding one hundred
eighty days may make contributions reportable
under this chapter to a candidate, to a state official
against whom recall charges have been filed, or to a
political committee having the expectation of making
expenditures in support of the recall of the official.
This subsection does not apply to loans made in the

ordinary course of business.
: esacicn

(12) Notwithstanding the other subsections of
this section, no county central committee or
legislative district committee may make
contributions reportable under this chapter to a
candidate, state official against whom recall charges
have been filed, or political committee having the
expectation of making expenditures in support of the
recall of a state official if the county central
committee or legislative district committee is outside
of the jurisdiction entitled to elect the candidate or
recall the state official.

2la

(13) No person may accept contributions that
exceed the contribution limitations provided in this
section. :;

(14) The following contributions are exempt
from the contribution hmits of this section:

(a) An expenditure or contribution
earmarked for voter registration, for absentee
ballot information, for precinct caucuses, for
get-out-the-vote campaigns, for precinct judges
or inspectors, for sample ballots, or for ballot
counting, all without promotion of or political
advertising for individual candidates; or

(b) An expenditure by a_ political
committee for its own internal organization or
fund raising without direction association with
individual candidates.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0710%3A2. Public record. Not legal advice.