Split court: Local initiatives subject to disclosure rule

After a measure is turned in to an elections official, donations to that campaign must be reported.

By Gene Johnson / Associated Press

OLYMPIA — A split Washington Supreme Court ruled Thursday that the attorney general’s office can pursue a campaign finance disclosure case against the conservative Evergreen Freedom Foundation.

The 5-4 majority rejected the group’s assertion that the disclosure requirements did not apply to local initiatives before they’re placed on the ballot.

The Freedom Foundation had provided free legal services to citizens in Sequim, Shelton and Chelan who gathered signatures for measures that would make collective bargaining sessions with public employee unions open to the public.

Officials in the cities declined to accept the measures for the ballot, however, and the initiative promoters sued — with the Freedom Foundation’s help — in an effort to force public votes on the measures.

In 2015, Washington Attorney General Bob Ferguson sued, saying the Freedom Foundation should have reported the legal help to the Public Disclosure Commission as a campaign contribution. A Thurston County Superior Court judge threw out the lawsuit, saying state law was vague on whether the contributions needed to be reported, but an appeals court overturned that decision.

State law explicitly says that after a measure has been submitted to an elections official, donations to that campaign must be reported. That applies to statewide initiative measures, which must be reviewed by the secretary of state’s office before proponents can gather signatures.

But for some local initiatives, supporters don’t turn them in until after they’ve collected signatures. The Freedom Foundation argued that it wasn’t required to report its contributions because the local measures hadn’t yet been approved for the ballot.

The majority disagreed. Justice Barbara Madsen wrote that state disclosure law must be interpreted broadly to promote transparency in political campaigns.

“Washington law has demanding but clear campaign finance disclosure requirements, and the Supreme Court confirmed that today,” Ferguson said.

The dissent, authored by Justice Sheryl Gordon McCloud, insisted that the law did not clearly require the Freedom Foundation to report the expenses, and that because the organization’s First Amendment rights were involved, the burden should have been on the government to prove that the reporting was required.

In a written statement, the Freedom Foundation said it would appeal to the U.S. Supreme Court. Chief Executive Tom McCabe questioned how an ordinary citizen was supposed to understand the requirements of the law when the justices themselves couldn’t agree.

“It’s unconstitutional to enforce ambiguous laws in a way that penalizes free speech, which is exactly what the Attorney General and Supreme Court did,” McCabe added.

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