Ninth Circuit Holds Washington State's Contribution Limits for Recall Campaigns Unconstitutional
Yamuna Bhaskaran | Bloomberg Law
The State of Washington’s Constitution permits elected officials to be recalled for specific offenses, including malfeasance, misfeasance, or violations of the oath of office. Under Washington Revised Code § 42.17A.405(3), contributions to recall campaigns were limited to no more than $800, including both monetary and in-kind contributions.
Washington resident Robin Farris formed a political committee to recall a local official (the Committee), and registered it with the state’s Public Disclosure Commission (PDC). While Farris and the Committee were in the process of obtaining signatures from registered voters to support the recall, the PDC issued a notice alleging that a law firm had provided the Committee with in-kind contributions exceeding the $800 limit by representing it pro bono in court proceedings related to the recall. Although the PDC withdrew the charges, Farris, the Committee, and the law firm filed suit in the U.S. District Court for the Western District of Washington to challenge the constitutionality of the contribution limit. In July 2011, the district court issued a preliminary injunction to prevent the state from enforcing the limit against plaintiffs for the duration of the 2011 recall campaign.
On appeal, the U.S. Court of Appeals for the Ninth Circuit began by holding that although the November 2011 recall campaign had already passed, the issue was not moot because the “‘situation [was] capable of repetition, yet evad[ed] review.” Specifically, it held that the two months during which the injunction was in effect would have been insufficient to appeal the matter. Moreover, having failed to collect enough signatures to put the recall on the November ballot, the $800 limit would still apply if Plaintiffs chose to pursue another recall effort.
Addressing the question of whether the injunction had been properly granted, the Court focused its analysis on whether plaintiffs had established a likelihood of success on the merits; namely, whether the $800 limit for contributions to a recall committee violated plaintiffs’ First Amendment right to free speech. Contribution limits may be upheld under the First Amendment if “the limits are closely drawn to match a sufficiently important interest.” (Internal quotations omitted.) The Court found that governments have a legitimate interest “in preventing the actuality or appearance of quid pro quo corruption,” and limiting contributions to candidates and political parties served that interest.
By contrast, limiting expenditures made independently of political candidates did not serve a legitimate interest. In keeping with the reasoning behind the U.S. Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), the Court observed that “[l]ike independent expenditure committees, recall committees in Washington have at most a tenuous relationship with candidates,” particularly because unlike jurisdictions that hold elections to name a successor, Washington law mandates that the successor be appointed by a government entity. As such, recall committees “do not have the sort of close relationship with candidates that supports a threat of actual or apparent corruption.” There was also no evidence that recall committees had any influence on the appointment of successors, either in general or in the instant case.
Finding that plaintiffs had established a likelihood of success and that they had satisfied the remaining elements for obtaining an injunction, the Court affirmed the district court’s grant of injunctive relief.
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