Amid Freedom Foundation allegations that eight candidates for public office in Seattle violated the city’s “honest elections” law by accepting illegal campaign contributions from eight labor unions representing city employees, the Seattle City Council has amended the law to exempt labor unions and others.

Seattle voters passed Initiative 122 in 2015 in the hopes of “reducing the influence of money, ensuring accountability, and preventing corruption in City of Seattle government.” Recent actions of the city council and the Seattle Ethics and Elections Commission (SEEC) have turned these goals upside down.

Though best known for establishing the city’s “democracy voucher” program, I-122 also included what is now codified as Seattle Municipal Code 2.04.601 which, as of today, states:

No Mayor, City Council member or City Attorney or any candidate for any such position shall knowingly accept any contribution directly or indirectly from any entity or person who in the prior two years has earned or received more than $250,000, under a contractual relationship with the City.

Using city data, recent Freedom Foundation research documented how, during the past two years, at least eight labor unions representing Seattle employees received more than $250,000 in dues and fees collected by the city from employees’ pay.

Citing election reports filed with the SEEC, the Freedom Foundation also documented how these unions had, nonetheless, made campaign contributions to Mayor Jenny Durkan and mayoral candidates Ed Murray, Jessyn Farrell and Bob Hasegawa; City Councilmembers Lorena Gonzalez and Teresa Mosqueda; and City Attorney Pete Holmes and city attorney candidate Scott Lindsay.

There is no disputing that: (1) a labor union is a “person or entity”; (2) these unions have a “contractual relationship with the city” in the form of collective bargaining agreements; (3) the unions have “received” funds from the city under the terms of those collective bargaining agreements exceeding $250,000 in the past two years; or, (4) these eight candidates nonetheless accepted campaign contributions from these unions.

Accordingly, the Freedom Foundation submitted its findings to the SEEC on June 5, requesting that it investigate the allegations and initiate enforcement proceedings if appropriate.

When asked in an interview with Kirby Wilbur on 570 KVI whether the Freedom Foundation believed the complaint would be handled fairly by the SEEC, this author replied:

I’ve never had any professional dealings with the folks at the SEEC. I will give them the benefit of the doubt that they will handle this fairly and even-handedly but, at the end of the day, the buck stops with them. If they want to take the position that the law applies only when it restricts disfavored entities from engaging in politics, then let them go on the record as taking that position.

SEEC executive director Wayne Barnett did just that on June 18 when he dismissed the Freedom Foundation’s complaint.

It is not an exaggeration to say the dismissal was completely untethered from the law. Barnett’s dismissal stated:

In interpreting this provision [SMC 2.04.601], Commission staff has looked to the plain meaning of the term “contractor.” Merriam-Webster’s Collegiate Dictionary (Tenth edition) defines contractor as “one that contracts or is party to a contract: as (a) one that contracts to perform work or provide supplies…” … In other words, where payments to an entity are not for goods or services provided by that entity to the City, staff does not interpret those payments as triggering SMC 2.04.601.

With all due respect to Barnett’s “interpretation” and Merriam-Webster, the only relevant question is how the law defines “contractor.”

In fact, the term “contractor” is not used anywhere in the text of the law itself. The law simply applies the prohibition to “any entity or person who in the prior two years has earned or received more than $250,000, under a contractual relationship with the City.” The SEEC may refer to such a person or entity as a “contractor” out of convenience if it wishes, but it has absolutely no authority to substitute a narrower definition of “contractor” for the plain language of the law itself.

Had the law been intended to apply to “contracts to perform work or provide supplies” as imagined by Barnett, it would have said as much. The fact that the initiative applied to “contractual relationships” involving the mere receipt of funds indicates the law was intended to apply broadly to situations beyond those involving the earning of payment by the provision of goods or services.

While the term “contractor” does appear in the short caption for SMC 2.04.601 — “No Campaign Contributions from City Contractors or their PACs” — SMC 2.04.690 (also passed as part of I-122) specifically states, “Captions provided are not substantive.”

Elsewhere in his dismissal, Barnett admitted that the unions in question are “party to contracts with the City” and that “[t]he City transmits deductions from City employees’ paychecks to the unions,” though he arbitrarily proclaimed the process does not “[trigger] the application of SMC 2.04.601.”

No competent judge or attorney could approve of such a strained interpretation of the law.

The law provides the Freedom Foundation with two weeks to file an appeal of the executive director’s dismissal to the full SEEC, and it intended to do so.

However, the Seattle City Council may have obviated the need for an appeal when it passed Council Bill 119279 on Monday, June 25.

As initially introduced, the bill was a package of reforms to the democracy voucher program. It was provided to the city clerk for review on June 5, the same day the Freedom Foundation filed its complaint with the SEEC.

On June 19 — just one day after the SEEC dismissed the Freedom Foundation’s complaint — the Seattle City Council’s Governance, Equity, and Technology Committee conducted a hearing on CB 119279. Barnett was in attendance.

During the hearing, Councilmember Teresa Mosqueda proposed an amendment to the bill to exempt unions from the scope of SMC 2.04.601 by limiting the law to “any entity or person who in the prior two years has earned or received more than $250,000, under a contractual relationship to provide goods and services to the City.” (Emphasis added)

Mosqueda was not only a subject of the Freedom Foundation’s complaint but, as the former political director for the Washington State Labor Council, she received the most illegal campaign contributions from labor unions of the eight individuals named.

In comments at the hearing, Mosqueda stated, “I think that this amendment here just clarifies and, I think, maintains the integrity of the initiative as it was passed by the voters.” Exactly how limiting the scope of the broad prohibition adopted by voters somehow “maintains the integrity of the initiative as it was passed by the voters” remains shrouded in mystery.

More significantly, Mosqueda claimed, “I think that this amendment really just reaffirms the decision and statement that came out of the [Seattle Ethics and Elections] Commission yesterday…”

Hogwash. If, as Barnett contends, the law as passed by voters only applies to entities that “contract to perform work or provide supplies” to the city, then Mosqueda’s amendment was entirely unnecessary. The only problem is that’s not what the law says, and both Barnett and the city councilmembers know it.

Rather than publicly reaching the inescapable conclusion that some of the city’s elected officials had accepted improper campaign contributions from unions, Barnett dismissed a valid complaint without good cause. In so doing, he: (1) bought the members of the Seattle City Council time to re-write the law to their benefit before the Freedom Foundation could appeal his indefensible interpretation of the law; and, (2) shielded the members of the city council from the embarrassment of re-writing a law the SEEC had just publicly determined they had violated.

Barnett’s complicity in this charade raises serious questions about the integrity and independence of the SEEC.

Not that this lets the Seattle City Council off the hook for its actions.

As elected officials, the members of the Seattle City Council are free to act in whatever corrupt and self-serving way they see fit, but it’s up to the voters to hold them accountable.

In a just world, Mayor Jenny Durkan would rebuke the council for its behavior and veto CB 119279. However, as she was also the recipient of (formerly?) illegal campaign contributions from unions in 2017, this outcome seems unlikely.

At the end of the day, the problem is more about process than policy. The Freedom Foundation tends to be very skeptical of laws that force people to engage politically or prevent them from doing so. Thus, to the extent more people and entities are now free to participate in Seattle elections, the law has been improved.

But a bad law should nonetheless be consistently enforced until lawfully reformed through proper channels. Anything less means we’re not really governed by laws at all, but by the whims of those in power who selectively apply or reinterpret the laws to grant the appearance of legitimacy to their arbitrary and capricious exercise of power.

By such a measure, the process by which Seattle officials have alternately ignored and re-written city election law as suits their interests, all while claiming to uphold the principles of clean elections and the will of the voters, leaves much to be desired.