InsideSources

A Washington state nonprofit tried to help a group of citizen activists put union reform initiatives on their local ballots, but the plan backfired spectacularly.

Not only did the initiatives not make it onto ballots due to Washington state legal restrictions regarding union reform, but the Washington state attorney general sued the nonprofit, the Freedom Foundation, for failing to disclose the pro bono legal services it provided to the union reform activists.

Last week, the foundation announced it will appeal to the Supreme Court of the United States (SCOTUS) over the Washington State Supreme Court’s ruling that the foundation violated Washington’s Fair Campaign Practices Act (FCPA) by not disclosing the pro bono legal services.

In an effort to increase transparency, citizen activists in the Washington cities of Chelan, Sequim, and Shelton gathered signatures for ballot initiatives that would require the city governments to make their collective bargaining negotiations with unions representing city employees open to public observation, and also give city employees the ability to opt out of a union and not pay union dues, echoing Right to Work initiatives.

The city of Chelan, in accordance with its municipal code, directed the ballot initiative to its city attorney, after which the city took no action on the initiative. The city of Sequim did not take any action with the ballot initiative and neither did the city of Shelton, likely because of the state legal restrictions regarding union reform initiatives for city employees.

The Freedom Foundation sued the three cities in three separate lawsuits for taking no action on the initiatives, but the courts dismissed all three lawsuits, and the foundation did not appeal them. Then, the state attorney general sued the foundation for not disclosing its legal services as a “campaign donation” under the FCPA.

Because the foundation offered the legal services completely free of charge to the citizen activists, the foundation believes it did not break the FCPA (the foundation continued to pay its lawyers as usual).

But the Washington State Supreme Court ruled against the foundation, saying the spirit of the law calls for utmost transparency regarding donations and services rendered on behalf of a political campaign.

The majority opinion also pointed out that according to the local law, initiatives are considered “ballot propositions” and “campaigns” once filed with city clerks. So according to local law, the initiatives were in fact “ballot propositions,” and the foundation should have disclosed its involvement. But the local law also assumes that after a city clerk receives a ballot initiative, then the citizens sign the petition for the city council to either adopt the initiative or put it to a vote.

That’s not what happened in the cities of Chelan, Sequim, and Shelton: the citizen activists obtained signatures before submitting the ballot initiative to the city clerks.

“The majority said, yes this is vague but we’re going to interpret the law in the spirit of campaign law in Washington which favors disclosure,” Maxford Nelson, the foundation’s director of labor policy, told InsideSources. “So we’re going to come down on the side of increased transparency. The minority took the view that we think is correct, that when it comes to regulations of speech and political activity, you’re dealing with First Amendment issues and to enforce a vague law that burdens the exercise of free speech is long thought to be unconstitutional. So the minority took the view that the law is vague and the government should not be enforcing vague law in a burdensome way.”

Unions wield a lot of power in the state of Washington, so from the foundation’s point of view, unions pressured the state and city governments into dismissing the ballot initiatives then prosecuting the foundation.

Nelson also said unions fail to disclose campaign donations all the time, but the state doesn’t prosecute them.

Paul Seamus Ryan, vice president of policy and litigation for Common Cause, said the state of Washington’s interpretation of the law is “consistent with how most states regulate the ballot process,” adding that it is also common for municipalities to reject ballot initiatives.

“The standard practice typically required under state law is for disclosure practices to apply from the earliest stages,” Ryan told InsideSources. “[The Freedom Foundation’s] argument is wholly inconsistent with how campaign finance law is interpreted all over the country.”

If courts ruled in favor of the foundation’s argument, Ryan said, they would nullify the purpose of campaign finance law.

“There is an exemption in federal and most state campaign finance laws for lawyers who are wholly volunteer and are not being paid by their law firms or nonprofits,” he said, which is not what happened with the Freedom Foundation as its lawyers were still paid by the foundation to do their work. “[If the Freedom Foundation won] it would be a huge loophole and would totally undermine the point of campaign finance law.”

Mark Lamb, one of the lawyers who represented the Freedom Foundation, acknowledged Ryan’s assessment as correct, but said it doesn’t make sense for the foundation to disclose the legal services when the ballot initiatives can’t be considered true “ballot propositions” under local law.

Ryan, like the Freedom Foundation, prosecuted municipalities for rejecting ballot initiatives, but lost in court.

“It is quite common for governments to refuse for a variety of reasons to put a measure on a ballot and then there be litigation around that, so it’s not unusual,” he said. “Courts get to decide whether the cities were reasonable or unreasonable. You expect it going into a ballot measure that the city may fight it. There are many steps where litigation can happen.”

A source close to the Freedom Foundation told InsideSources that if that’s how courts usually interpret campaign finance law, then the law needs to be more clear. From the foundation’s perspective — and the minority perspective on the Washington State Supreme Court — the law’s vagueness confuses organizations trying to comply.

Associate Justice Sheryl Gordon McCloud wrote in the dissent that when the law is so ambiguous, courts should rule in favor of the citizen, not the government. To rule in favor of the government over a vague law is a violation of free speech.

Louis Caldera, senior adjunct professor of law at American University’s Washington College of Law, told InsideSources that in these kinds of cases involving campaign assistance or donations, the free speech argument usually — ironically — benefits special interest groups, unions, and “those with a lot of money.” So a ruling in the foundation’s favor would also benefit the unions it is trying to reform, by reducing transparency accountability.

“They want the weakest disclosure requirements possible,” Caldera said. “From the campaign side, we’ve had a lot of concern about money and politics and corrupt candidates and the political process and special interests with disproportionate power. So people have tried to address the issue of money and politics going back to when they tried to limit campaign contributions and expenditures. The expenditures part ran afoul of free speech and right of association concerns, and that’s still an issue and people are still trying to figure out how to get the money out of politics on the expenditure side.”

The Freedom Foundation told InsideSources it hopes SCOTUS will hear the case and perhaps clarify campaign finance law so that other organizations know exactly where they stand when assisting various political campaigns.

“That’s the problem with vague laws, people with different viewpoints will prosecute them differently,” Lamb said.

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Sen. Bernie Sanders has a new book out,“Where We Go from Here: Two Years in the Resistance, ”and he sat down with New Hampshire Public Radio on Monday to promote it. When asked if he is going to run for president in 2020, he said it depended on the reaction he got to his message that “we need an unprecedented grassroots political movement to stand up to the greed of the billionaire class and the politicians they own.”

Well, if Bernie really wants to battle “millionaires and billionaires,” all he has to do is file his papers for the 2020 Democratic primary. The list of 33 (and counting) potential 2020 candidates includes several billionaires, including former NYC Mayor Michael Bloomberg, coal-magnate-turned-green-activist Tom Steyer and Starbucks ex-chief executive Howard Schultz, along with Dallas Mavericks owner/reality TV star Mark Cuban (who may or may not be a Democrat).

The Democratic Party has plenty of billionaires to go around

When it comes to “billionaires buying elections,” Steyer is the leader of the pack. With a net worth of $1.6 billion, Steyer has been the top individual donor in two out of the last three election cycles, giving a total of more than $226 million dollars over that period.  Steyer is open in his efforts to connect his donations to environmental policies he supports.

Steyer’s $59 million in this cycle was edged out this cycle by fellow billionaire liberal Michael Bloomberg (Net worth: $45 billion), who gave $61 million, much of it through his pro-gun-control efforts. Bloomberg is just as clear that he wants his money to impact public policy on the Second Amendment.

Big spending by these billionaires, however, doesn’t seem to bother Bernie. When asked about Bloomberg and Steyer, Sen. Sanders said Steyer “is a very decent guy,” while he said he didn’t know Bloomberg personally. Then Sanders went on to add:

“The issue that concerns me–it’s not just those guys– it’s that, as a result of Citizen’s United, we have a corrupt campaign finance system. The Koch Brothers, Sheldon Adelson, they’re trying to buy elections. Billionaires shouldn’t be buying seats for themselves.”

But how is Tom Steyer, who has literally used his billions to build a campaign infrastructure many believe he will use to run for president in 2020, different from the Koch Brothers–other than the fact that they’re not running for anything, and their Americans for Prosperity Action PAC spent a measly $6.5 million this cycle?

The problem for progressives like Bernie Sanders and Liz Warren with their “millionaires and billionaires” schtick is that the Democratic Party has become the party of America’s wealthy elites. For every Republican billionaire like Sheldon Adelson (who was the top individual donor this cycle at $113 million) there are a dozen left-leaning tech billionaires like Mark Zuckerberg at Facebook and Jeff Bezos at Amazon, or rich Hollywood millionaires and movie stars, or liberal activists like George Soros, etc. etc.

The Trump GOP is the party of rural working-class Americans more than it is “millionaires and billionaires.” And making the case that the rich are stealing democracy is tough when they are (based on the numbers) apparently “stealing it” for Democrats.

And why do the Democrats even need leftover rabble rouser Bernie Sanders?  Tom Steyer is at least as populist as Sanders–if not more so. Michael Bloomberg is at least a socially liberal–once again, if not more so. And there’s a whole bevy of college-student-friendly far-Left activists like Booker, Brown and Beto who haven’t achieved AARP status yet. For a guy who should be considered top dog for 2020, Sen. Sanders current poll numbers are unimpressive.

Bernie’s real problem isn’t “billionaires.” It’s his bad luck that the last real chance he had of being the Democratic nominee was stolen from him by Hillary Clinton and the DNC.

Sen. Bernie Sanders has a new book out,“Where We Go from Here: Two Years in the Resistance, ”and he sat down with New Hampshire Public Radio on Monday to promote it. When asked if he is going to run for president in 2020, he said it depended on the reaction he got to his message that “we need an unprecedented grassroots political movement to stand up to the greed of the billionaire class and the politicians they own.”

Well, if Bernie really wants to battle “millionaires and billionaires,” all he has to do is file his papers for the 2020 Democratic primary. The list of 33 (and counting) potential 2020 candidates includes several billionaires, including former NYC Mayor Michael Bloomberg, coal-magnate-turned-green-activist Tom Steyer and Starbucks ex-chief executive Howard Schultz, along with Dallas Mavericks owner/reality TV star Mark Cuban (who may or may not be a Democrat).

When it comes to “billionaires buying elections,” Steyer is the leader of the pack. With a net worth of $1.6 billion, Steyer has been the top individual donor in two out of the last three election cycles, giving a total of more than $226 million dollars over that period.  Steyer is open in his efforts to connect his donations to environmental policies he supports.

Steyer’s $59 million in this cycle was edged out this cycle by fellow billionaire liberal Michael Bloomberg (Net worth: $45 billion), who gave $61 million, much of it through his pro-gun-control efforts. Bloomberg is just as clear that he wants his money to impact public policy on the Second Amendment.

Big spending by these billionaires, however, doesn’t seem to bother Bernie. When asked about Bloomberg and Steyer, Sen. Sanders said Steyer “is a very decent guy,” while he said he didn’t know Bloomberg personally. Then Sanders went on to add:

“The issue that concerns me–it’s not just those guys– it’s that, as a result of Citizen’s United, we have a corrupt campaign finance system. The Koch Brothers, Sheldon Adelson, they’re trying to buy elections. Billionaires shouldn’t be buying seats for themselves.”

But how is Tom Steyer, who has literally used his billions to build a campaign infrastructure many believe he will use to run for president in 2020, different from the Koch Brothers–other than the fact that they’re not running for anything, and their Americans for Prosperity Action PAC spent a measly $6.5 million this cycle?

The problem for progressives like Bernie Sanders and Liz Warren with their “millionaires and billionaires” schtick is that the Democratic Party has become the party of America’s wealthy elites. For every Republican billionaire like Sheldon Adelson (who was the top individual donor this cycle at $113 million) there are a dozen left-leaning tech billionaires like Mark Zuckerberg at Facebook and Jeff Bezos at Amazon, or rich Hollywood millionaires and movie stars, or liberal activists like George Soros, etc. etc.

The Trump GOP is the party of rural working-class Americans more than it is “millionaires and billionaires.” And making the case that the rich are stealing democracy is tough when they are (based on the numbers) apparently “stealing it” for Democrats.

And why do the Democrats even need leftover rabble rouser Bernie Sanders?  Tom Steyer is at least as populist as Sanders–if not more so. Michael Bloomberg is at least a socially liberal–once again, if not more so. And there’s a whole bevy of college-student-friendly far-Left activists like Booker, Brown and Beto who haven’t achieved AARP status yet. For a guy who should be considered top dog for 2020, Sen. Sanders current poll numbers are unimpressive.

Bernie’s real problem isn’t “billionaires.” It’s his bad luck that the last real chance he had of being the Democratic nominee was stolen from him by Hillary Clinton and the DNC.

Republican presidential front-runner Donald Trump continues to lambaste what he sees as the corrupt influence of money in politics. But many campaign finance reform advocates, including conservatives, are ambivalent about his rhetoric that’s short on solutions to systemic problems.

Rallying Wednesday night at Clemson University in Pendleton, South Carolina, Trump said super PACs pouring money into the White House race are “crooked as hell” and “out of control.”

“I’m self-funding my campaign, so I can’t be bought,” the billionaire business mogul told the crowd.

In truth, nearly 34 percent of Trump’s campaign funding by the end of last year came from contributions, according to the fact-checking website PolitiFact. But the mogul did finance a whopping 66 percent of his effort, touting his avoidance of “special interest money” in his New Hampshire primary victory speech Tuesday.

“These are special interests, folks. These are lobbyists. These are people that don’t necessarily love our country. They don’t have the best interests of our country at heart,” Trump said. “When you see the kind of deals made in our country, they’re made for their benefit. We have to stop it. For your benefit, we’re going to make the deals for the American people.”

This pitch — that Americans should elect the independently wealthy Trump who isn’t beholden to political donors — doesn’t sit well with many campaign finance reform advocates. Larry Noble, the general counsel at the Campaign Legal Center, noted that Trump hasn’t proposed any specific changes to the current system. He’s worried about how the mogul wants billionaires like investor Carl Icahn to be his advisers and appointees in the White House.

“At the end of the day, the question is who you’re going to listen to and who you’re going to get advice from, regardless of the reason you’re taking that advice,” Noble said in an interview. “If what he does is go to the same people who are making the political contributions, even if they haven’t made political contributions to him, we’re in the same problem.”

Another advocate with concerns was University of Minnesota law professor Richard Painter, who penned “The Conservative Case for Campaign-Finance Reform” in the New York Times last week. In an email to InsideSources, he said “there is nothing fair about a system where the only candidates who are not dependent upon special interest money are self-funded billionaires. That is not the system of representative democracy contemplated by our founders.”

Painter, who was an associate White House counsel for ethics under President George W. Bush, added that the country “is in a precarious situation when angry voters respond to apparent dysfunction and disenfranchisement by rejecting mainstream candidates and gravitating to extremes.”

“We need to fix our campaign finance system,” he said, “but in the meantime voters in both parties need to make responsible choices with what we have. Mr. Trump is not one of those choices.”

Despite their criticisms, however, Noble and Painter agreed that Trump is tapping into frustration with money in politics as a growing bipartisan concern. “Whether you are a conservative Republican who believes in fiscal responsibility and doesn’t believe in corporate welfare or whether you are a progressive who believes in universal healthcare, you are becoming aware that the problems stem from influence of large contributors,” Noble said.

That’s certainly the assumption of Take Back Our Republic, a right-leaning campaign finance reform group launched in January by conservative political consultant John Pudner. He told InsideSources that money and politics has “moved to a top-of-mind voting issue, which it had never been until very recently.”

In fact, many Republicans have avoided the topic all together, rejecting reform as a First Amendment violation of political speech through spending. Pudner said that will change, and “you’re already seeing the beginnings of the crack in the dam.”

In New Hampshire’s closely watched Senate race, the Republican incumbent is calling on her Democratic challenger to sign a pledge limiting outside spending in their campaign. According to WMUR, Sen. Kelly Ayotte wants Gov. Maggie Hassan to agree “that a candidate who benefits from a third party ad donate 50 percent of the ad’s total cost to a charity of the other candidate’s choice.”

This pledge was used previously by former Massachusetts Sen. Scott Brown, a Republican ally of Ayotte’s who ran for Senate in New Hampshire unsuccessfully in 2014.

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When Connie Morella’s turn came at the Brookings Institution on Thursday, she talked about the Roman god Janus.

Signifying “beginnings and transitions,” he’s depicted with two faces — one looking to the past and the other to the future. The month of January was of course named for this deity, and that’s why Morella, the former Republican congresswoman from Maryland, said it was the perfect time to confront an issue that both haunts her history and looms ahead for all of American politics: the state of the campaign finance system.

Morella was one of more than a half dozen current or former members of Congress gathered for a Brookings summit on campaign finance reform, there to tell horror stories about how the system presently works and offer potential fixes. Among other things, the politicians gave testimony to how much raising money can be a distraction from governing.

The most striking remarks came from New York Rep. Steve Israel, a member of the House Democratic leadership, who says he’s declining to seek re-election over “a fund-raising regime that’s never been more dangerous to our democracy.” He said he’s most happy to be giving up “call time,” the process of phoning people for campaign donations, to which he claims to have devoted 4,200 hours.

“It was tantamount to looking at my schedule and seeing, ‘from 1 to 3, waterboarding,'” Israel said. He also compared the process to selling stocks on Wall Street, with the need to “always be closing.” He said the experience took up so much time that it often conflicted with his duties as a representative.

“When votes are called and you’re in the middle of call time, it becomes an impediment,” he said.

Democrat Tim Wirth, a former U.S. senator from Colorado, agreed. “It’s really corroding of who you are,” he said.

In addition to the powerful interests who have lined up against campaign finance reform, Maryland Rep. John Sarbanes said another challenge is galvanizing the American people around the issue. The Democrat said that when voters read stories about money in politics their eyes glaze over, because coverage focuses on fights between faceless super PACs or billionaire donors.

“You’re not interested in that. You don’t see yourself in the story,” he said. Instead, Sarbanes told activists to focus on the human angle of the issue, including Americans who want to run for office but can’t do so because they don’t have huge amounts of money.

Asked by InsideSources about resistance to reform in Congress, he said members worry voters “will somehow tag them as being hypocritical” since they’re all participants in the current system. “What I tell them, based on my experience, is the public is very capable of distinguishing between a current broken system … and the aspirations that we have to go change the system,” he said.

Another speaker with a message to activists was Zephyr Teachout, the Fordham University law professor and 2014 Democratic gubernatorial candidate in New York. “Your job is just to stop saying things can’t happen,” she said. “You have to stop being pundits and start being patriots.”

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