Freedom Foundation

Internal emails show WA lawmakers targeted Freedom Foundation with HB 1888

Summary

Internal legislative emails obtained by the Freedom Foundation under the Washington State Public Records Act (PRA) show the impetus behind House Bill 1888 — adopted during the 2020 legislative session — was not, as the bill’s backers contended in their public statements, to protect public employees’ privacy.

Instead, the bill was aimed at impeding the Freedom Foundation’s efforts to inform public employees of their right to resign union membership.

The emails were obtained from the Legislature by the Freedom Foundation via requests for public records. Following litigation and public outcry, the Washington State Legislature began complying with the state Public Records Act (PRA) in 2019.

Also unearthed were emails in which a communications staffer for Senate Democrats excoriated local media as lacking “any semblance of fairness, accuracy or basic professional responsibility” for its “obsession” over “access to public information,” claiming that government transparency laws like the PRA are “of little concern to the public.”

Introduction

In politics, certain statements are best left unsaid, though internal emails involving Washington state lawmakers and their staff show there’s no shortage of controversial sentiments in Olympia.

Ironically, the only reason the emails are now seeing the light of day is because local news media, government transparency advocates and tens of thousands of concerned Washingtonians successfully pushed back against the Washington State Legislature’s attempt to exempt itself from the PRA in 2018. The Washington Supreme Court subsequently confirmed that the Legislature must begin complying with the PRA.

In March, the Freedom Foundation requested records held by the state House and Senate involving the debate over HB 1888, a union-backed bill passed this year that exempted public employees’ full dates of birth from disclosure under the state PRA. Records have been produced in installments for the past seven months.

Ostensibly, according to supportive lawmakers, the bill’s purpose was to protect public employees from identify theft, stalking and harassment.

However, it was an open secret around the capitol that the bill’s true motivation was to curtail the Freedom Foundation’s ability to inform public employees about their newly acknowledged constitutional right to cancel union dues deductions from their paychecks. Without PRA access to lists of public employees maintained by government agencies, the Freedom Foundation’s ability to identify and communicate with public employees would be hampered.

Late in 2019, a coalition of unions filed litigation challenging the Freedom Foundation’s PRA requests for public employees’ dates of birth — a key identifier that differentiates persons with the same name — but the Washington State Supreme Court ruled against them in October 2019, finding the Freedom Foundation had a legal right to the information.

Unions immediately pivoted to changing the law. They freely admitted HB 1888 was aimed at suppressing the Freedom Foundation’s speech, and numerous newspaper editorial boards pointed it out in denouncing the legislation.

Nevertheless, lawmakers assiduously avoided referencing the Freedom Foundation in connection with the bill — at least publicly.

However, records show that, behind the scenes, lawmakers and their staff were fully aware the bill was intended to protect unions and disparaged the Freedom Foundation and local news media for opposing the bill.

The emails

Even prior to the start of the 2020 legislative session, Sen. Sam Hunt (D-Olympia) emailed a constituent about his intention to hamper the Freedom Foundation’s outreach to public employees in the upcoming session, writing on Dec. 10, 2019:

“It is unfortunate that the right-wing Freedom Foundation is using employees’ information in its anti-union campaign… My goal is to deal with this issue early in the 2020 session by protecting employee birthdates from public disclosure.”

In a Jan. 3, 2020 email also sent before the beginning of the legislative session, Rick Manugian, senior communications specialist for the Democrat Caucus in the Washington State Senate, provided talking points for Sen. Claire Wilson (D-Auburn) to use regarding HB 1888.

Manugian also savaged local press outlets for their presumed opposition and claimed the public doesn’t actually care about government transparency.

In his email, Manugian wrote of HB 1888:

“I would avoid discussing this issue with the media. As their hysterical coverage and editorializing on the PRA showed, they are unlikely to be rational, fair or objective regarding public access to information of any kind.”

“The (talking) points focus on the risk and harm to public employees, not whether personal information about public employees should be accessible to third parties… Conversely, debate about process and/or access to public information is of little concern to the public despite the media’s obsession with it, and – as noted above – not a discussion that the media can be expected to report with any semblance of fairness, accuracy or basic professional responsibility.”

“Unfortunately, the nature of the Janus ruling leaves employees with no means to protect their private information from being shared and misused, whether through identity theft, domestic abusers, political organizations or other avenues. Only the Legislature has the ability to address this problem by passing new law, which was attempted in Sen. Kuderer’s bill this past session and would be attempted in HB 1888.”

Manugian’s comment on “the Janus ruling” refers to the U.S. Supreme Court’s 2018 ruling in Janus v. AFSCME, in which the court struck down state laws, like those in Washington, forcing public employees to pay union dues/fees as a condition of employment.

While he correctly identified a connection between Janus and HB 1888, Manugian’s observation that Janus left employees “with no means to protect their private information from being shared and misused” was entirely off base; Janus didn’t address personal information at all, simply the obligation to pay union dues.

Others in the Legislature had a better grasp of the connection between the two.

On Jan. 10, Aaron Wasser, communications director for the Senate Democrats, emailed two of the caucus’ policy staffers draft talking points he had prepared for Democrat senators to use when fielding union-generated correspondence from public employees who had received information from the Freedom Foundation. Wasser emailed an updated version of the talking points four days later, which were subsequently distributed to the offices of Senate Democrats.

Wasser’s final talking points condemned the “antics of these anti-union zealots” and noted that, “Our colleagues in the House are working on House Bill 1888, which will exempt state employee birthdates from the list of disclosable personal information.”

On Jan. 12, 2020, Sen. Karen Keiser (D-Des Moines) emailed a constituent, writing,

“Thank you for writing to me in support of House Bill 1888. On December 18th, the Thurston County Superior Court has issued a temporary injunction stopping the release of personal information for public employees, including birth dates, which had been requested by an anti-union private organization called the Freedom Foundation. The breadth of the Freedom Foundation’s request was so large as to make its request a classic ‘fishing expedition’ in my opinion… Bills related to public records requests for public (sic) will be addressed when the 2020 legislative session starts on January 13th. I will be sure to keep your comments in mind as we grapple with this important issue.”

Far from being a “fishing expedition” — a term typically used to describe broad requests for records with no particular purpose in mind other than to “fish” for incriminating information — the Freedom Foundation’s requests were quite specific, seeking only basic, legally disclosable information of certain union-represented public employees necessary to allow the Freedom Foundation to send them informational material about their rights. Unions routinely receive far more comprehensive personal information about employees without being accused of being on a “fishing expedition.”

Regardless, Sen. Keiser’s comments confirm both her knowledge of and desire to thwart the Freedom Foundation’s educational efforts.

In a Jan. 22, 2020, response to a constituent email asking her to oppose HB 1888 because, “Public officials need to stand for the common good, not fall prey to efforts intended to support the goals of special interests,” Sen. Christine Rolfes (D-Bainbridge Island) replied that she supported the legislation because she was “…concerned about the scope and intent of the recent records requests from the Freedom Foundation…”

Several weeks into the legislative session, on Feb. 6, 2020, Josie Ellison, communications specialist for the Senate Democratic Caucus, emailed Alex Ramel (D-Bellingham) a PowerPoint prepared by caucus staff for use by Democrat legislators at their upcoming telephonic town hall meetings. One of the slides in the deck pertained to HB 1888 and stated:

“The Supreme Court case was filed by the Freedom Foundation – an anti-government special interest – in order to contact state union members to alert them about the right to not pay union dues. This is not done in good faith for transparency, but as a political tactic to reduce union participation while putting individual people at risk.”

First, the referenced litigation was actually filed by unions seeking to block government agencies from complying with the Freedom Foundation’s requests for public records. The Freedom Foundation joined in defending the government’s position that the requested information must be disclosed.

Further, the Freedom Foundation is neither anti-government nor a special interest group, though part of its mission statement does involve advocating for “limited, accountable government.”

Lastly, the argument that there was anything inappropriate about the Freedom Foundation’s requests is both easily refuted and difficult to take seriously, given that unions have used the PRA to obtain lists of employees for organizing purposes for decades and, now that most have been unionized, have access to detailed personal info about employees — including even Social Security numbers — outside the framework of the PRA.

A few days later, on Feb. 10, 2020, Rep. Cindy Ryu (D-Shoreline) emailed her assistant talking points to use in formulating responses to constituent correspondence received about HB 1888. While noting that the “Freedom Foundation testified opposed to the bill,” Rep. Ryu directed her assistant to deny that the bill was “a spat between unions and the Freedom Foundation…”

Though the Washington Supreme Court had just ruled in October 2019 that the Freedom Foundation was legally entitled to public employees’ dates of birth, new union arguments in lower courts further delayed the release of the information, dragging the litigation into, and through, the 2020 legislative session, a fact apparently not lost on Sen. Hunt.

After HB 1888 had passed out of the Senate Government, Tribal Relations & Elections Committee, which Hunt chairs, it was referred to the Ways and Means Committee, of which he is a member.

While the Ways and Means Committee was considering the bill, Hunt sent the following email to a nonpartisan legislative staffer on February 29, 2020:

“This morning an attorney working on the court case reminded me that the hold on the release of state employee information to the Freedom Foundation expires March 15. I want to offer the addition of an emergency clause to 1888 so there is no gap that might allow release of information.”

When asked by the staffer whether the amendment should be “public” or “confidential,” Sen. Hunt directed him to “start with confidential.”

While the bill eventually passed without an emergency clause, Sen. Hunt’s interest in tacking one on to HB 1888 — such clauses mean the bill takes effect more quickly than usual, typically immediately upon the governor’s signature instead of 90 days after the end of the legislative session — for the sole purpose of changing the law before the information could be released to the Freedom Foundation establishes beyond any doubt that suppressing the Freedom Foundation’s speech was the animating force behind HB 1888, not protecting employees.

During the debate over HB 1888 on the Senate floor on March 4, 2020, several amendments were introduced by Sens. John Braun (R-Centralia), Doug Ericksen (R-Ferndale) and Shelly Short (R-Addy).

Adam Hall, policy counsel for the Senate Democrats on the State Government, Tribal Relations & Elections Committee, emailed his thoughts about the amendments to Sens. Hunt and Patty Kuderer (D-Bellevue), describing them this way:

“Braun 1279 – rather than have the agency describe the nature of the request (e.g. ‘The Freedom Foundation wants your birthday’) the agency is providing a copy of the request (which may be nondescript or convoluted in nature).

Braun 1280 – Limits disclosure to labor union without employee authorization. This is PRA exemption base on the requester. Can’t imagine the court will love this…

Ericksen 1276 – Requires agencies to distribute Freedom Foundation materials about labor organizing so long as the nonprofit pays for it and they don’t do it more than four times a year.”

Of course, nothing in the amendments themselves actually referenced the Freedom Foundation, but Hall’s repeated references to and fixation on the Freedom Foundation and the Democrat majority’s subsequent rejection of each amendment — none of which would have undermined the bill’s purported objective of protecting public employees by blocking disclosure of their dates of birth — drive home the point that the bill was always and only about limiting the Freedom Foundation’s ability to inform public employees of their civil liberties.

Conclusion

Taken together, the records collected thus far by the Freedom Foundation reveal a stark contrast between lawmakers’ public and private statements about HB 1888.

As the Freedom Foundation contended at the time, the bill was never about protecting public employees; indeed, it accomplished very little in this regard. For instance, the date of birth of every registered voter in Washington, including those who are public employees, remains a public record.

Instead, HB 1888 was nothing more than one of the largest and most influential special interest groups in the state — government unions — seeking to roll back voter-approved government transparency laws to prevent public employees from learning of their constitutional right to refrain from subsidizing unions and, by extension, the elected officials those unions back with members’ dues.

More concerning than the brazenness of government unions is that a majority of the state Legislature not only knew of, but actively participated in, the charade.

That’s something Washingtonians of all stripes should find deeply concerning.