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Family Pac v. McKenna

December 29, 2011

FAMILY PAC, PLAINTIFF-APPELLEE,
v.
ROB MCKENNA, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF WASHINGTON; JIM CLEMENTS, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HIS OFFICIAL CAPACITY; DAVID SEABROOK, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HIS OFFICIAL CAPACITY; JANE NOLAND, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HER OFFICIAL CAPACITY; JENNIFER JOLY, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HER OFFICIAL CAPACITY; BARRY SEHLIN, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLANTS.
FAMILY PAC, PLAINTIFF-APPELLANT,
v.
ROB MCKENNA, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF WASHINGTON; JIM CLEMENTS, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HIS OFFICIAL CAPACITY; DAVID SEABROOK, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HIS OFFICIAL CAPACITY; JANE NOLAND, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HER OFFICIAL CAPACITY; JENNIFER JOLY, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HER OFFICIAL CAPACITY; BARRY SEHLIN, MEMBER OF THE PUBLIC DISCLOSURE COMMISSION, IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding D.C. No. 3:09-cv-05662-RBL

The opinion of the court was delivered by: Fisher, Circuit Judge

FOR PUBLICATION

Argued and Submitted November 16, 2011-Portland, Oregon

Before: Raymond C. Fisher, Richard A. Paez and Richard R. Clifton, Circuit Judges.

OPINION

We address the constitutionality of three provisions of Washington election law as applied to the political committees that support and oppose ballot measures. We hold that Washington's disclosure requirements, Washington Revised Code § 42.17.090 and Washington Administrative Code § 390-16-034, which require these committees to disclose the name and address of contributors giving more than $25, and additionally to disclose the employer and occupation of contributors giving more than $100, survive exacting scrutiny because they are substantially related to the important governmental interest in informing the electorate. We hold that Washington Revised Code § 42.17.105(8), which prohibits a political committee from accepting from any one person contributions exceeding $5,000 within 21 days of a general election, is not closely drawn to achieve the state's important interest in informing the electorate. Section 42.17.105(8) is therefore unconstitutional as applied to ballot measure committees. We affirm the judgment of the district court.

I.

Family PAC is a continuing political committee organized under Washington Revised Code § 42.17.040. Compl. ¶ 21. According to the verified complaint, Family PAC organized as a political committee to support "traditional family values" by soliciting and receiving contributions and making contributions and expenditures to support or oppose ballot measures. Id. ¶ 22. Family PAC's initial project was to oppose Washington's domestic partnership law by urging voters to support Referendum 71 in the 2009 election. Id.

In this action, filed in October 2009, Family PAC alleged that three provisions of Washington election law violate the First Amendment as applied to ballot measure committees: (1) Washington Revised Code § 42.17.090, which requires a political committee to report the name and address of each person contributing more than $25 to the committee; (2) Washington Administrative Code § 390-16-034, which adds the requirement that a political committee report the occupation and employer of each person contributing more than $100 to the committee; and (3) Washington Revised Code § 42.17.105(8), which prohibits a political committee from accepting from any one person contributions exceeding $5,000 within 21 days of a general election.*fn1, *fn2, *fn3 Washington imposes no limit on contributions accepted by ballot measure committees outside this 21-day period. Nor do the rules limit what a ballot measure committee can spend, either before or during the 21-day period.

The complaint asserted that Family PAC intends to accept contributions in excess of $25 and $100, and that "[p]otential donors to Family PAC have indicated that they are unwilling to donate if Family PAC is required to report their name and address pursuant to [the disclosure laws]." Compl. ¶¶ 28-30. Family PAC also presented evidence that, but for the $5,000 contribution limit, it would have received contributions of $60,000 and $20,000 from Focus on the Family during the Referendum 71 campaign. Passignano Decl. ¶¶ 7-13.

Wash. Rev. Code § 42.17.090(1). The parties agree this provision requires committees to disclose the name and address of contributors giving over $25.

Family PAC sought a declaration that the three challenged provisions violate the First Amendment and an order enjoining the state from enforcing the provisions against ballot measure committees. The defendants are the Washington State Attorney General and the members of the Washington State Public Disclosure Commission (PDC), which administers and enforces the challenged provisions. We refer to the defendants collectively as "the state."

Family PAC moved for summary judgment, which the district court granted in part and denied in part. The court held that the $25 and $100 disclosure requirements survived exacting scrutiny because they are substantially related to an important governmental interest in allowing voters to "follow the money" behind ballot measures. The court explained:

[T]hough the limits may seem low to [Family PAC], small contributions when aggregated by organizations of people ("special interests," as we so often refer to them in the political debate: unions, business interests, occupational guilds or associations) they can have a powerful impact on the debate and voters can benefit from the information that disclosure provides.

The court accordingly denied summary judgment with respect to the $25 and $100 disclosure requirements. The court subsequently dismissed these claims with prejudice.

The court construed the 21-day contribution limit as "a ban on political speech," and accordingly applied strict scrutiny. It agreed with the state that the government has a compelling interest in allowing voters to identify contributors to ballot measure campaigns, but concluded that the 21-day limit was insufficiently tailored to achieve this interest:

The State focuses on the fact that all but one of Washington counties use a vote-by-mail system and they mail ballots 18 days before the election date. This system is offered up as modern-day justification for a 1970s-era law that may have needed up to 21 days to gather, organize, and distribute the information about campaign contributions.

Now, however, campaign contributions can be reported and made publicly available within minutes, and certainly within 24 hours. Given that reality, a 21-day ban on large contributions cannot be viewed as necessary ...


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