No More Limits on Last-Minute Spending – Could Change Campaign Strategy

James Bopp, Jr.

By Erik Smith

Staff writer/ Washington State Wire

OLYMPIA, Sept. 8.—In a decision that could turn this year’s rollicking initiative campaigns into an even bigger-spending free-for-all, a federal judge has overturned a Washington law that limits contributions during the final days of ballot-measure campaigns.

            State rules say that ballot-measure campaigns cannot accept donations of more than $5,000 during the final 21 days before an election. But last week, U.S. District Judge Ronald Leighton of Tacoma ruled that limit was an unconstitutional limit on free speech. What it means is that the enormous spending seen so far in this year’s ballot-measure campaigns can continue right up until the final day.

            Practically speaking, it could have a major impact on strategy in Washington’s new by-mail elections. The limits applied during the period when ballots are sent to voters and those ballots begin trickling back to county elections offices. The change means campaigns might conduct their own polling to determine how voting is going, and then decide whether another big infusion of money for TV ads and mailers might make a difference.

            Already the spending on this year’s initiatives is immense. There are six measures on the ballot, and so far the pro-and-con campaigns have raised $32 million, according to campaign-finance records submitted to the state Public Disclosure Commission. That’s a state record – it tops the $22.8 million spent for the entire season in 2005. And there’s still seven weeks to go.

            A little under half of that amount – some $14.4 million – has been put toward a single campaign, I-1107, the tax-rollback measure sponsored by the American Beverage Association and its Washington-state affiliate, encompassing the soda-pop distributors of Washington state. But money continues to pile up in the coffers of other campaigns, and some expected campaign contributions for TV ad buys have yet to surface in the reports.

            Suit Concerned R-71

            The lawsuit was brought by Family PAC, a key supporter of last year’s Referendum 71, which sought to overturn the domestic-partnership legislation approved by Washington lawmakers in 2009. James Bopp, Jr., lead attorney for the organization, has been seeking to overturn campaign-finance restrictions on free-speech grounds in a variety of venues. The latest decision built on the U.S. Supreme Court’s decision earlier this year in the Citizens United case – another Bopp effort – which held that restrictions on corporate political spending was an infringement on free speech.

            Leighton’s decision follows the same reasoning – that limits on contributions to political groups and limits on their spending runs counter to the constitution. Bopp issued a statement:

            “The First Amendment gives citizens the right to associate together to engage in political speech. That includes the freedom to make contributions in support of political causes they want to advance. Washington’s law was interfering with that right. Now the people of Washington will be able to do what the First Amendment allows and protects.”

            Upholds Reporting Laws

            Attorney General Rob McKenna’s office represented the state and has not decided whether to appeal.

            The decision actually was a mixed bag. Though the state lost the main point, Leighton also upheld the constitutionality of the state’s campaign-contribution reporting threshold. Donors of more than $25 must be identified, and the names of their employers must be reported when donations exceed $100.

            Bopp argued that the rules discourage participation by small donors, who fear that disclosure of their names might lead to harassment. He argued for a higher threshold – the public is interested primarily in the identities of large donors. "Disclosure of large contributions is what's helpful to people," he said. "Nobody cares who gave $25 to a campaign."