Democracy voucher program draws lawsuit (UPDATED)

The Pacific Legal Foundation, known for its conservative and libertarian legal crusades, has filed a lawsuit challenging Seattle’s Democracy Voucher program.

Initiative 122, the Honest Elections Initiative, was passed in November 2015 with a 63% majority.

The lawsuit was filed on behalf of two Seattle property owners who don’t support any of the candidates who have qualified for and opted to accept democracy vouchers.

Their argument is very simple:  they argue property owners are being asked to subsidize campaign contributions to candidates they don’t support. They claim that is a First Amendment violation: “The First Amendment does not allow local governments to force individuals to subsidize private political speech. I-122 violates the First Amendment by compelling Seattle property owners to pay for other people’s campaign contributions.” The lawsuit cites Harris vs. Quinn, a Supreme Court case on whether unions can require public employees to pay union dues, in stating “the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” 

Sometimes governments are allowed to infringe Constitutionally protected rights. But there is a three-part “strict scrutiny” test that courts apply to such cases:

  • The infringement must be justified by a compelling government interest. That’s a high bar.
  • It must be narrowly tailored to achieve that goal.
  • It must be the least restrictive means for achieving that goal, i.e. there can’t be another approach that would achieve the same goal while infringing the protected right less.

The lawsuit claims that the Democracy Vouchers program serves no compelling interest.

The Democracy Vouchers program claims three goals: fighting corruption, leveling the playing field among candidates for public office, and strengthening democracy.  The lawsuit argues that the program not only isn’t narrowly tailored or the least restrictive means, but that it fails to further those goals and in some cases undermines them:

The law is not narrowly tailored to achieve its purposes in a manner least restrictive of First Amendment freedoms. The voucher program, for example, claims to fight corruption… Certainly, preventing contributions might reduce corruption. But corruption is not stymied when individuals who wish to refrain from contributing are forced to do so.
The law also purports to level the playing field and strengthen democracy… By disfavoring minority viewpoints, however, the law undermines rather than serves these goals. A program that funnels money in a partisan manner does not level the playing field, strengthen democracy, or prevent corruption. Indeed, the program contradicts each of these goals. It therefore fails strict scrutiny and violates the First Amendment on its face.

Those arguments, and quite frankly much of the rest of the text of the complaint, read more like a political speech than an actual legal document. The complaint repeatedly refers to the Democracy Vouchers program as the “politician enrichment tax.” It claims, “By distributing such funds at the whim of majoritarian interests, the program disfavors minority viewpoints,” an argument it tries to support by pointing out that 54% of Seattle residents are renters (who don’t pay property taxes on their homes) and that “the political interests of Seattle’s many renters and their landlords often clash before the city council… Seattle imposes the burden of funding renters’ political speech — in the form of vouchers — solely on the shoulders of landlords and other property owners. It thus forces landlords to fund the speech of the very interest group they often oppose before the city council.”

This line of argument carefully avoids the fact that any candidate could potentially qualify to receive democracy vouchers regardless of their political leanings, but that some choose not to. Then the issue is whether campaign finance reform is itself an act of speech, and whether requiring candidates to accept campaign fundraising restrictions in order to qualify for democracy vouchers is itself a restriction on free speech. Campaign finance reform is certainly a hot political topic, one that many candidates have included in their platforms.

The case was filed in King County Superior Court, because that court has jurisdiction over tax issues in Seattle. From here, the City of Seattle will file a response, a judge will be assigned and set a schedule for briefs and hearings, and both sides will file briefs and motions. As of today, the plaintiffs have not asked for a preliminary injunction or a temporary restraining order to halt the ongoing execution on the Democracy Vouchers program for this fall’s campaigns — and doing so would be messy given that money has already been distributed. But absent such a motion (and the court granting it), it will take many months, and probably years, to finally resolve this. The legal arguments are complex, and it’s hard to predict how the courts will decide the issues. But be assured that the City Attorney’s office will aggressively defend the program.

UPDATE: a spokesperson for Pacific Law Foundation confirmed for me this morning that they are not pursuing a preliminary injunction. So the lawsuit is on the slow road to resolution, and is unlikely to interfere with the program as it relates to this year’s campaigns.