Thursday, January 19, 2012

Washington: Ninth Circuit uphold injunction against Washington's strict recall contribution law

Rick Hasen has both the key points and a copy of the decision. Here's some news coverage. I won't get a chance to read it till later, but Professor Hasen highlights a key footnote, claiming that Washington State's system of recalls -- in this case, a vote on whether to recall the official followed by an appointment of a successor -- to be part of the cause of the decision. Essentially, if Washington State had California's or Wisconsin's or Arizona's, the results may have been different.

Here's some earlier coverage on the failed recall attempt against that led to the suit, and an article by George Will blasting the Washington State law. Here's what I wrote about the suit:

  Will's piece is an attack on Washington state's campaign finance structure for recalls -- the state bans any contribution above $800, including pro bono legal service. Since the Assessor-Treasurer requires over 65,000 signatures, the $800 is a real barrier.  A Federal Court Judge has issued a temporary injunction against the law in the case.

The story leaves out a whole lot of information. Perhaps most important is the origins of the $800 limit. Will blames it on Washington lawmakers protecting themselves. However, it was actually passed by voters in 1992 (with 73% of the vote) under Initiative 134. Undoubtedly, politicians deserve some credit or blame for pushing and crafting initiatives, but the fact that it was an initiative heavily mitigates Will's complaint. I don't know the full history of Initiative 134, but these three articles suggests it was an attempt to clamp down on union spending on campaigns. To say this law was designed to actually protect incumbents seems a great stretch.

The law itself seems extremely restrictive. However, this point from the Institute for Justice, which brought the suit, is worth thinking about:
The U.S. Supreme Court has repeatedly held that government restrictions on political speech and spending are unconstitutional unless they are closely related to stopping a politician from trading his vote for cash.  But there is no threat of corruption from contributions to a recall campaign because there is no candidate to corrupt.  Indeed, a recall campaign is the opposite of corruption—there’s no danger that a politician will do favors for someone who donates to his recall campaign; indeed, quite the opposite.  Even the Ninth U.S. Circuit Court of Appeals—one of the courts most favorable to laws restricting political speech—has recognized that recall contributions are not corrupting.  Yet Washington persists in enforcing unconstitutional laws.
This may be the law, but it seems to be at odds with reality, and demands an overly restrictive, rose-colored view of the recall. From the earliest days of ther recall (see theE.E. Grant recall), we've seen that candidates try to use the recall to get themselves into office. Legally, we might have to close our eyes to this reality (though I haven't thought about it enough to come to a conclusion), but we can't honestly believe it.  Washam himself is a good example, as he tried to launch recalls against his predecessors. Do you think he wasn't taking names of his contributors to the recall effort?

But none of this shows a conspiracy theory in favor of elected officials. Instead it continues to show that politicians and bill drafters were not considering the recall when they made most modern campaign laws. Wisconsin and Arizona have extremely different campaign finance systems covering recalls, and both are different from their regular law --Wisconsin's is unlimitedArizona's extremely restrictive. On the same front, there is controversy regarding laws banning political signs from being posted a certain number of days before elections -- the sign laws are probably unconstitutional. When they thought of these laws, nobody was thinking of the recall. And we can't be surprised by that.

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