Thursday, August 25, 2005

Below, I had a story on a Voter's Education Committee v. Washington State Public Disclosure Commission lawsuit brought on behalf of the US Chamber of Commerce, with a Ms. Senn intervening. Senn was alleged by the ads of creating an appearance of impropriety in her handling of publc funds. The ads are core political speech deserving exacting scrutiny to any attempt by Senn and her cronies to suppress them.
Via the election law list, I've now seen the decision and an amicus brief, and will need to make a few revisions. My general outlook on the case remains that it should be reversed on appeal. Not a slam dunk, it could go either way, but there are significant errors both in the court opinion and in the commission's behavior.

This post isn't a full treatment, but a few notes.
The commission and the court don't have a handle on what "express" in express advocacy means. Neither do the plaintiffs. I have not seen or read the plaintiff's brief, so I am construing their arguments from secondary sources.

The court found that McConnell did away with the express v implied advocacy distinction. Perhaps I'm oversimplifying what the court said. The court's ruling that the PDC can force disclosure of who paid for an ad critical of Senn, relies on two main points. First, after McConnell, the state can regulate issue advocacy, second, these ads were express advocacy.
The first point is an interesting one, that will be settled by the state supreme court. The second is flat out wrong. What's really going on is that the court pointed to a Washington case that allowed implied advocacy to be regulated under a Furgatch type test. I'll need to find and read that case to see if it was fairly described.
No mention of, for example, No on 119!, which was about protection of political speech.
One of the big holes in the court's opinion was its failure to reach the state constitutional issues. After McConnell, state constitutions become extremely important, where the federal supreme court, at least for the moment, has pulled back from protecting political speech. Plaintiffs properly raised the state constitutional issue. I don't know how well they addressed it.
An analogy would be Bowers v Hardwick, in which the statute erroneously upheld by Bowers was later struck down by the Georgia Supreme Court on state constitutional privacy grounds, before Lawrence v Texas fixed the federal problem.
The statutory definition of political committee is vague, so Buckley and MCLF, using an express advocacy test, are probably more on point than McConnell, which addressed a carefully crafted non-vague statute to test just that issue.
So the issues for review include, is there an express advocacy construction which must be applied to "political committee", is the express advocacy test really express, and what about the state constitution?
Anyway the decision is a bit more nuanced than the press reports made it seem, and I may have been a bit wrong in some details below.
The decision describes as "express," statements which can have only one possible meaning. That's fairly consistent with Valeo and Furgatch, although when the meaning is conveyed by nudge nudge wink wink rather than "magic words", we are dealing with implied advocacy rather than express. "Issue advocacy," as I've argued for years, is a red herring. The constitution protects discussion of issues. In order to create breathing room, in Valeo the court created an express advocacy test, which held that implied advocacy is constitutionally protected. To be express does not require any magic words, Vote for, Elect. There's always some other way to express those intentions. But express must be express, not implied. Here, the amicus brief unintentionally outlines several other possible constuction of the ad. It could be an accusation of a crime, a suggestion of unethical conduct, an indication of corruption or the appearance of corruption. These are compelling interests, and the court must act to protect these compelling interests from censorship.
As stated in Talley, and as shown in NAACP v Alabama ex rel Patterson and Bates v Little Rock, some statements must be made anonymously, or they will not be made at all. Bush is in his second term, and is not standing for election. Yet we call him a crook, unethical, corrupt, or at least appearing corrupt, in editoral pages, movies, books, protests. Similar criticism of Senn, arguing that her laundering of settlment funds was unethical, is protected speech, under both the federal and state constitutions. Is is electoral advocacy? Of course. Is it implied, rather than express? Of course. So it would be protected speech, if either the federal or state constitution requires an express advocacy construction of the statute.
That is the heart of the case, plus some additional state constitutional concerns, so we should turn next to Washington State Republican Party, the state court's prior ruling on express advocacy. Stay tuned for next post.
I have found but not yet read, the Chamber's amicus brief.
Here is GOP v PDC.http://www.mrsc.org/mc/courts/supreme/141wn2d/141wn2d0245.htm.

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