Campaign Finance Caps Always Favor Incumbents

Thursday, 22 Sep 2011 03:56 PM

By George Will

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The pleasant sound you hear — the clatter of bad laws crumbling — is the edifice of campaign finance restrictions disintegrating. Washington state provides a fresh example of the exhaustion of the "campaign finance reform" project, which tries to empower government to restrict speech about the composition and conduct of government.

The state law at issue is awful, but usefully awful: It perfectly illustrates how the political class crafts campaign regulations for the purpose of protecting the job security of members of that class — elected incumbents.

Pierce County near Seattle has an assessor-treasurer, Dale Washam, whose comportment in office has offended Robin Farris and others. The details about what Washam has done to stir a recall clamor need not concern us; courts consider whether the details are sufficiently grave before allowing a recall election to proceed.

For the record, the Tacoma News Tribune says Washam's two-year tenure "has turned a minor government office into a fountain of perpetual controversy . . . Investigations state that Washam retaliated against his employees, wasted government resources, abused his power, and hindered the inquiries. Costs of those investigations and other legal matters tied to Washam's office now exceed $108,000. The four damage claims — preludes to lawsuits — seek a collective total of $4.25 million."

The right of the people to vote to recall elected officials is a legacy of Western populism. Farris, a retired naval officer who has never previously been politically active, and some kindred spirits have failed to gain enough signatures to force a vote to remove Washam — perhaps because of the impediments to signature gathering.

Not unreasonably, Washington state law, in order to prevent attempts to overturn elections for frivolous reasons, requires a superior court judge to have a "sufficiency hearing" to determine whether the charges against an official attain a threshold of seriousness by involving "malfeasance or misfeasance." This judge's opinion can be appealed to the state Supreme Court. So a recall campaign necessarily involves significant litigation expenses — even before beginning the efforts to collect sufficient signatures to get the recall question on the ballot.

What is, therefore, highly unreasonable — and unconstitutional — is the regime of restrictions on raising and spending money on recall campaigns. So say Farris and the Oldfield & Helsdon law firm, which ran afoul of state law when it volunteered to do pro bono work on behalf of Farris and the Recall Dale Washam Committee she helped to organize.

Farris and the firm are represented by the Institute for Justice — a public interest law firm based in Arlington, Va. State law restricts individual contributions to most recall campaigns to just $800. This low limit on the indispensable means of disseminating political speech is a huge impediment to buying newspaper advertising. Such advertising is necessary — see above — to collect the requisite 65,495 signatures in a county of 1,800 square miles. And the $800 limit has a wee constitutional defect.

The U.S. Supreme Court has held that the only permissible reason for any limits on political contributions is to prevent corruption or the appearance thereof — basically, quid pro quo transactions between candidates and their supporters. But who exactly can be corrupted by the spending of persons supporting the recall of an elected official?

It gets worse. Washington state says that lawyers who do pro bono work on behalf of a recall effort — who volunteer their time to help with litigation the state makes mandatory — must count their time as a financial contribution subject to the $800 limit. This, too, has the effect, surely intended, of crippling recall efforts.

You almost have to admire the audacity of Washington state's political class in writing a law that constitutes such a comprehensive attack on citizens' First Amendment rights of speech and of association — of assembling to petition for redress of grievances.

The law provides a right of recall — and then vitiates that right. It turns a de jure right into a de facto nullity by mandating an expensive process, then arbitrarily limiting the ability of participants to meet those expenses. It does this by placing low limits on monetary contributions to recall campaigns and, even more insidiously, it compels volunteer lawyers to monetize the time they contribute to litigation the state requires.

This rigging of a process threatening to the serenity of the political class is unambiguous proof that protection of that class is always a — in this case the — purpose of government regulation of politics in the name of "campaign finance reform."

George Will's email address is georgewill@washpost.com.





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