Anti-gas-tax activists encounter legal hurdles

OLYMPIA – When two Seattle talk-radio hosts spent days this spring touting an anti-gas-tax initiative – and repeatedly urging listeners to donate to it – they were essentially giving the measure a huge, free, political ad, a judge ruled Friday.

And like anything donated to a political campaign, Thurston County Superior Court Judge Chris Wickham said, all that radio airtime in the state’s biggest media market should be reported as a campaign contribution.

Attorneys for No New Gas Tax, the group behind Initiative 912, complied with Wickham’s ruling by reporting later in the day that the airtime was worth an estimated $20,000 to the campaign. But one of the lawyers, Chip Goss, said that the entire lawsuit – brought by several Puget Sound cities and San Juan County – was “harassment” that allowed gas-tax backers to legally comb through the campaign’s records.

“This is giving a search warrant to the Watergate burglars,” Goss protested to the judge. “This is ugly, dirty, so offensive and distasteful that you should put a stop to it now.”

Instead, the judge ruled against No New Gas Tax on every point.

No New Gas Tax spokesman Brett Bader said the group is unfazed.

“Nothing that was done will, in any way, stop us from moving forward,” Bader said in a written statement. He predicted that the group will gather enough signatures to put I-912 on the fall ballot, and that voters will pass it. The initiative would undo the 9.5 cent per gallon gas tax increase, to be phased in over four years, that was passed this spring.

The radio shows were on KVI, a Seattle AM talk-radio station. Talk-show hosts Kirby Wilbur and John Carlson – a former Republican candidate for governor – repeatedly urged listeners in May to sign petitions and donate money on the group’s Web site: www.nonewgastax.com. The station even issued a press release, saying that they “helped promote the launch of a new anti-tax initiative.”

“Our legal team is writing the initiative,” Wilbur told The Spokesman-Review at the time. “We hope to file it this week.”

There’s a difference between soliciting money for a campaign and discussing politics or news, said Mark Vaska, an attorney for the groups backing the gas tax. The shows, he said, were a valuable political contribution, just as when Microsoft donates computers to a campaign or T-Mobile donates cell phones. And under the state’s campaign-finance laws, such “in-kind” contributions must be publicly reported.

The programs were not commercials, said Rob Dunlop, general manager of Fisher Radio, which owns KVI.

“We’re talking about news and opinion, which is not for sale,” he said.

He declined to place a value on the airtime, although Carlson later joked on-air that he conservatively valued it at $100 billion.

Carlson, on his drive-time radio show, said that he simply encouraged people to gather signatures, sign and donate. “If those things are going to be construed as commercials, the entire First Amendment will be chilled.”

Judge Wickham also ruled against No New Gas Tax on another campaign-finance issue. On its Web site, the group raised tens of thousands of dollars through payments made via PayPal, a common Internet billing service that uses credit cards.

Under state law, campaigns must report the names and addresses of people who donate more than $25. But PayPal doesn’t provide a person’s address, Goss said.

Without the full information, the campaign shouldn’t be allowed to spend that money, the city and county lawyers argued.

The group has worked hard to gather and report the information, both sides agree. But Wickham said Friday that if No New Gas Tax can’t provide the required information for a donor, it can’t spend that money. Group attorney Mark Lamb said that the ruling would affect “significantly less than $20,000.” The campaign reported $133,569 in donations as of May 31.

Goss called the complaints “harassment” and said that the pro-gas-tax cities should have complained to the state Public Disclosure Commission, not filed a lawsuit.

“This country has a history of dirty politics … but this is the bottom of the barrel,” he told the judge.

Lastly, Judge Wickham on Friday rejected No New Gas Tax’s own lawsuit, which had originally sought to bar the state from selling the first installment of construction bonds backed by the new 9.5-cent gas tax increase. The state plans to soon sell the first $70 million batch of a total $5.1 billion in gas-tax-backed bonds.

If the state sells the bonds, it will be contractually obligated to pay them, Goss said. That threatens to make the initiative toothless, since a previous court case said that an initiative can’t undo the government’s contractual commitment. And the initiative can’t come up for a vote until November, even if backers gather the necessary quarter-million signatures.

“At that point, the horse has left the barn,” said Lamb.

On Friday, No New Gas Tax softened its position, asking the judge to simply tell the state to include a notice on the bonds saying that the gas tax that pays for them might go away once voters get their say in November.

But Judge Wickham said he could find nothing in the state constitution to permit the sort of ruling that No New Gas Tax wanted. Without that, he said, he was unwilling “to upset the delicate balance of power” between the courts and lawmakers.