State Supreme Court upholds “Democracy Voucher” program

In a unanimous opinion, the Washington State Supreme Court has upheld the legality of Seattle’s “Democracy Vouchers” program.

 

The case added to an existing body of case law around the question of whether mandatory payments into a public fund that eventually pays for political speech that a payee might disagree with conflicts with the payee’s First Amendment rights. And more to the point, it’s an argument about which of three previous U.S. Supreme Court case precedents is the most appropriate to apply:

  1. Buckley vs. Valeo: a 1976 case that found that the public presidential campaign fund (that checkbox on your 1040 form asking whether you want $3 to go to the fund) is constitutional.
  2.  Board of Regents of the University of Wisconsin vs. Southworth: a 2000 case finding that mandatory student activity fees that fund (among other things) student speech are constitutional.
  3. Janus vs. American Federation, a case from last year that found that mandatory fees paid to a public employees’ union that funded the political activities of that union are an unconstitutional burden on union members’ First Amendment rights.

The Janus case is widely interpreted as the conservative U.S. Supreme Court majority both limiting the power of unions and re-interpreting the prior precedents on “compelled speech.” Justice Alito, who authored the opinion, had long argued that the prior precedent (Abood vs. Detroit Board of Education) was ruled incorrectly and had been looking for an opportunity to overturn it.

While the contexts of the three cases differ, the focus on First Amendment protections, mandatory payments related to public institutions, and “compelled speech” are common. The plaintiffs in the Democracy Vouchers case argued that Janus is the controlling law, while the City argued that it is Buckley (with a bit of Southworth mixed in).

The Court agreed with the city that Buckley is the controlling law, and argued that because residents of Seattle decide who receives vouchers, and not the city, the program is “viewpoint-neutral” and therefore doesn’t burden First Amendment rights.

The Court distinguished this case from Janus, which it said “involved an agency fee that directly subsidized the union’s collective bargaining activities, which burdened “associational freedoms.” But in this case, the plaintiffs “cannot show the tax individually associated them with any message conveyed by the Democracy Voucher program,” — and without that Janus has no bearing on the case. It held:

The Democracy Voucher Program does not alter, abridge, restrict, censor, or burden speech. Nor does it force association between taxpayers and any message conveyed by the program. Thus the program does not violate First Amendment rights.

Dan Nolte, spokesman for the City Attorney’s Office, released the following statement:

“This is a big win for the changing face of political campaigns, opening the playing field to provide more people an opportunity to seek local office.  If other Washington cities were considering a Democracy Voucher program of their own, they’ll be aided knowing our state’s highest court has just given the green light.  It’s especially heartening when our office is able to successfully defend a program developed and resoundingly approved by Seattle voters.”

(Side note: City Attorney Pete Holmes recused himself from involvement in the litigation of this case, since he participated in the Democracy Vouchers program when he ran for re-election in 2017)

Ethan Blevins, the attorney for the plaintiffs, issued the following statement on the Court’s decision:

There’s much to be said, but our overall feeling is that the Court’s opinion misunderstands a long-standing “compelled subsidy” doctrine under the First Amendment,  which prohibits government from forcing private individuals to sponsor other people’s campaign contributions. That’s what the Supreme Court plainly held in its 2018 Janus decision and many decisions before that. The Washington Supreme Court instead held, without any real support from the Janus case, that compelled subsidies of speech are only a problem if the payer of the subsidy is “individually associated” with the message they’re forced to support. In fact, Janus said that the constitutional problem is not forced association, but rather that “[f]orcing free and independent individuals to endorse ideas they find objectionable is always demeaning.” Hence, the injury is the compulsion, not that others might connect you with the message. It’s been settled for some time that this idea of being “individually associated” with the message is not  a required component of the compelled subsidy doctrine.

Blevins added that while they haven’t decided yet, “it’s quite likely” that they will appeal today’s decision to the U.S. Supreme Court – potentially giving Alito and the conservative majority a chance to further expand their Janus decision to a broader context beyond public unions.

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