OLYMPIA – It wasn’t political advertising; it was free speech.
That’s the argument made by a libertarian law firm, which says that gas tax supporters are using Washington’s campaign finance laws to stifle discussion of an initiative to overturn the state’s recently approved gas tax hike.
On Tuesday, for the second time in a week, the Institute of Justice went to court to make its point.
“For years, people have been warning us about the fact that campaign finance laws are subject to abuse and can be used as tools for the government to shut people up,” said Bill Maurer, executive director of the Institute for Justice’s Washington state chapter. “This case is going to be closely watched by people who want to regulate speech, the press and opinion journalism across the country.”
Last month, Thurston County Superior Court Judge Chris Wickham ruled that No New Gas Tax, the group behind Initiative 912, must report as campaign contributions the hours that two conservative Seattle talk-radio hosts spent promoting I-912 on the air. Local prosecutors in Seattle, Kent, Auburn and San Juan County – all of which would stand to gain from projects the gas tax would pay for – had sued No New Gas Tax for not disclosing the services of radio hosts Kirby Wilbur and John Carlson.
“The fact is that the talk show hosts were promoters of the campaign,” said San Juan County Prosecutor Randall Gaylord.
For several days in May, Wilbur and Carlson – a former Republican candidate for governor – repeatedly urged listeners to sign petitions and donate money to the campaign. Their station, KVI, even issued a press release saying that the two “helped promote the launch of a new anti-tax initiative.”
“They said ‘we,’ ‘our campaign,’ and they issued press releases … identifying themselves as the spokespersons for the campaign,” said Gaylord.
Those sorts of efforts, he said, go beyond simple editorial commentary and become an “in-kind” donation of political services to the campaign. Under the state’s campaign-finance laws, such non-cash donations – like printing, office space, cell phones – must be publicly reported.
“Just because you’re a talk-show host doesn’t mean that you’re protected from having to disclose your contributions to a campaign,” Gaylord said. “The freedom to travel doesn’t prevent Boeing from having to disclose if they provided an airplane for a trip.”
Last week, the Institute for Justice asked the Division II Court of Appeals in Tacoma to review Wickham’s preliminary injunction ordering the reporting of Wilbur and Carlson’s efforts. On Tuesday, the group also sued San Juan County, Kent, Auburn and Seattle in Thurston County Superior Court, saying that the municipalities are tromping on No New Gas Tax’s constitutional rights.
“I think this is one of the most important free speech cases to come around in a long time,” Maurer said.
The problem is that Wickham’s order leaves it unclear what should be reported, he said. For example, if an editorial sides one way or another, should that be reported? He cited The Spokesman-Review’s coverage and commentary about Spokane Mayor Jim West, who is currently the subject of a recall campaign.
“Is that an in-kind contribution to the Recall Jim West campaign?” said Maurer. “Under the reading that I give the prosecutors’ case, I think Jim West would be perfectly justified” in making such a claim.
Also, Maurer said, it’s unclear what coverage or commentary might be subject to the state limits on political contributions. He said that for initiatives, for example, a person can’t give more than $5,000 in the final three weeks of a campaign. The restrictions in Judge Wickham’s order, he said, might be interpreted as a limit on airtime or newspaper coverage during the critical final days of a campaign.
“Three weeks before the election, the spigot’s going to be turned off, in terms of information?” Maurer said. “This isn’t just about the right of the media or the initiative backers, it’s also about the right of the people to hear this message.”
Even without such contribution limits, he said, the corporate owners of most stations and newspapers are likely to be reluctant to see themselves listed as political contributors to controversial causes.
“So it still creates an enormous chilling effect,” Maurer said.
But current state law says that editorials, commentaries and other types of news reports are not considered political contributions, according to Doug Ellis, assistant director of the state’s campaign finance watchdog, the Public Disclosure Commission. He said the commission is now waiting to see how the current case is resolved.
Despite the ongoing court fight, No New Gas Tax has succeeded in getting its initiative to overturn the gas-tax hike on the November ballot. The tax increase is a critical part of a 16-year, $8.5 billion transportation package, including major projects in Seattle and at Snoqualmie Pass. The first 3 cents of the four-year, 9.5-cent increase were added in July.
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