Mere days after Senate Majority Leader Harry Reid proposed amending the Constitution to expand the government's power to restrict spending on peaceful political activity, the Washington Supreme Court is set to hear arguments Tuesday in a case that demonstrates just what expanding that power can mean.
The never-ending legal dispute in Utter v. BIAW arises out of Washington's 2008 gubernatorial race that pitted Dino Rossi, the Republican, against Christine Gregoire, the Democratic incumbent governor. The two had squared off before: Mrs. Gregoire defeated Mr. Rossi in 2004 by 133 votes after numerous recounts and litigation. Their rematch was closely watched by many across the country, including the Building Industry Association of Washington (BIAW).
The association was a vocal supporter of Mr. Rossi and other free-market causes and candidates, including judicial candidates. Their activities caught the eye of former state Supreme Court Justices Robert Utter and Faith Ireland. The former justices asked Washington's attorney general to investigate the group for potentially violating Washington's Byzantine campaign regulations.
One of the ex-justices' claims was that the Building Industry Association of Washington should have registered as a political committee. Political committee status, however, is burdensome and intrusive, especially for multipurpose organizations, and being declared one would severely limit the group's ability to function.
The attorney general referred the complaint to the agency charged with enforcing Washington's campaign laws, the Public Disclosure Commission, which subsequently decided not to bring any action against the association.
Ordinarily, when prosecutors decide that no law was broken, that ends the story. However, Washington, like many other states, has a "citizen's suit" provision in its campaign-finance laws. When the attorney general declines to sue a purported violator, the person who filed the original complaint can then decide to bring an enforcement action in the name of the state instead.
This opens up the possibility that interested parties will use the enforcement powers of the state for one purpose — defeating their political opponents. The plaintiffs in Utter were certainly interested. The former justices clearly stated that they were motivated by their opposition to the association's participation in judicial elections. Moreover, they were represented by attorneys with close ties to liberal groups, including one lawyer who has filed numerous suits against conservative causes and Republican candidates.
Mr. Utter and Ms. Ireland sued the Building Industry Association of Washington right before the 2008 election, and eight days before the election, the plaintiffs deposed Mr. Rossi. Their lawyer conducted a news conference outside the deposition.
The election came, and Mr. Rossi lost — the accusation and the publicity likely helping to lead to his defeat. Once the election was over, though, the justices largely lost interest in the case, never even bothering to file the motion that they promised the court when they sought permission to depose Mr. Rossi. In fact, with Mr. Rossi defeated, little happened in the case for two years until the association moved to officially dispose of it.
The trial judge, a former Democratic state senator, ruled in the association's favor. The justices appealed and, initially, the court of appeals ruled in their favor. However, the appellate decision was so broad that many organizations that would now be considered political committees as a result of the ruling, including liberal groups such as the Washington Education Association and the local Service Employees International Union, filed briefs in support of the association's request to reconsider the decision. On reconsideration, the appeals court sided with the association.
Undeterred, the justices sought review to the state Supreme Court, which granted review and that's where the case stands today.
Six years after the 2008 election, and long after the victor in that election retired from office, the association may now finally find out whether it is a political committee under Washington law. Under the First Amendment, the association should have been able to figure out whether the law applied to it before it was sued by its political opponents.
This six-year saga makes clear that giving the government — and often private parties — the ability to prosecute people for engaging in peaceful political activity will result in abuse and the use of the judicial process to pursue political ends. This is the world that Mr. Reid wants to expand and that he says will improve Americans' confidence in their government.
The Building Industry Association of Washington's saga sends the message that participating in an election can come at an extraordinarily high price, especially when confusingly ambiguous campaign-finance laws are joined with the possibility of politically motivated prosecution. There are many countries in the world in which people spend years being prosecuted for the "crime" of participating in elections. America should not be one of them.
If we do not want to turn American courtrooms into little more than just another field on which political campaigns are conducted, we should reject Mr. Reid's invitation to gut the First Amendment.
William R. Maurer is an attorney with the Institute for Justice, which filed an amicus curiae brief in support of the Building Industry Association of Washington.