(OLYMPIA, Wash.) — The Freedom Foundation has announced it will appeal to the U.S. Supreme Court a 5-4 ruling issued against it on Thursday morning by the Washington State Supreme Court over a campaign finance violation allegedly committed by the organization in 2014.
The lawsuit stems from efforts by citizen activists in Sequim, Chelan and Shelton to place union reform initiatives on their local election ballot. Based on model policies developed by the Freedom Foundation, an Olympia-based free-market think tank, the measures would have required city governments to open their collective bargaining negotiations with unions representing city employees to public observation and permit city employees to choose for themselves whether to financially support a union.
By all accounts, the local activists followed state laws to the letter and submitted the proper number of signed petitions. Nonetheless, the councils in each city refused to send the measures on to the voters.
The initiative backers responded by filing suit against the cities, with the Freedom Foundation providing free legal representation.
The suits were unsuccessful but, in 2015, a group of political operatives calling themselves the “Committee for Transparency in Elections” filed a complaint with the Washington Attorney General’s Office alleging, among other charges, that the Freedom Foundation should have reported to the Public Disclosure Commission the value of the legal services it provided to the citizen activists.
The committee, formed for the sole purpose of filing the complaint, was funded by $1,000 contributions each from SEIU Local 775’s political committee and the SEIU Washington State Council’s political committee.
The AG’s Office in October 2015 concluded “(T)he majority of the allegations did not constitute violations of state law,” but filed suit against the Freedom Foundation for not reporting the value of its attorneys’ time to the PDC.
In May 2016, a Thurston County Superior Court judge ruled against the state, finding the law to be “ambiguous and vague.” The AG’s Office filed an appeal and, in November 2017, the lower court’s ruling was reversed.
The Freedom Foundation then appealed to the Washington State Supreme Court, which on Thursday sided with the AG.
“From the start, this case has been 100 percent politically motivated,” said Freedom Foundation CEO Tom McCabe. “The unions pressured (Attorney General) Bob Ferguson to file a lawsuit in retaliation for the many cases the Freedom Foundation has uncovered of unions deliberately concealing millions of dollars in campaign contributions. And Ferguson, the recipient of tens of thousands of dollars in union money himself, happily complied.”
McCabe said the Freedom Foundation stands by its original assertion that there was no need to report its legal services as a campaign contribution when, in fact, the election in question never materialized.
More pointedly, the statute the Freedom Foundation is alleged to have violated is so vaguely worded as to be incomprehensible.
Thurston County Superior Court Judge Gary Tabor agreed, noting in the original court decision, “Unless there is clear and unambiguous guidance in the statutes, one cannot be said to have violated laws that don’t exist.”
State Supreme Court Justice Sheryl Gordon McCloud, author of Thursday’s dissent, came to the same conclusion. She explained, “Because (the wording of the law) is ambiguous as applied to the circumstances of this case, the statute cannot be given effect in these circumstances. It is unconstitutionally vague as applied.”
In her majority opinion, however, Justice Barbara Madsen, wrote, “A statute’s language is sufficiently clear when it provides explicit standards for those who apply them and provides a person of ordinary intelligence a reasonable opportunity to know what is prohibited.”
“How you can argue that a person of ordinary intelligence can understand this law when you can’t even get all nine Supreme Court justices to agree on what it says?” McCabe asked.
“At its core,” he said, “this is a First Amendment issue. It’s unconstitutional to enforce ambiguous laws in a way that penalizes free speech, which is exactly what the Attorney General and Supreme Court did.”
“We’re disappointed five justices of the Washington Supreme Court were made a party to a crude political payback,” McCabe said. “But we’re confident the U.S. Supreme Court will correct their error.”
The Freedom Foundation is a Northwest-based think and action tank promoting individual liberty, free enterprise and limited, accountable government.