Update 11/8/2021: In light of the Freedom Foundation’s objections, the PDC has modified its draft legislative proposal to no longer require sponsors of grass roots lobbying campaigns to disclose their top donors. The largest contributors to a specific grass roots lobbying campaign must still be identified on grass roots lobbying communications.

The Public Disclosure Commission (PDC), which administers and enforces Washington state’s campaign finance laws, is preparing a legislative proposal to submit to state lawmakers in 2022 that would, if adopted, inhibit political speech by discouraging organizations from communicating with voters about legislation under consideration in Olympia.

Among other things, the 70-page draft legislation takes aim at “grassroots lobbying campaigns,” which typically involve paid advertisements supporting or opposing pending legislation with the goal of getting people to contact their lawmakers about it.

Under current law, any organization that spends more than $1,000 to “sponsor” a grassroots lobbying campaign must disclose to the PDC the names and addresses of anyone who contributes $25 or more specifically towards the grassroots lobbying effort.

However, Section 18 of the PDC’s draft legislation would create an additional requirement that the sponsor of any grassroots lobbying advertisement costing more than $1,000 must include on/in the advertisement itself the names of the sponsor’s top five aggregate contributors over the preceding 12 months.

As the Freedom Foundation explained in comments to the PDC during its Sept. 23 meeting, the proposal makes little sense as written and would actively suppress political speech on important policy issues of concern to the public.

First, the information most relevant to anyone interested in the funding sources of a grassroots lobbying campaign would be the identity of those who contributed specifically for the purpose of the grassroots lobbying effort. Like most other campaign finance disclosures, this information must already be reported to the PDC and kept available for the handful of inquisitive minds who may seek it out.

If the goal is to inform the public of persons or entities who may have a stake or an interest in the lobbying effort, then requiring that information to be disclosed on the actual grassroots lobbying advertisements presented to the public might make some sense.

Instead, however, the PDC’s proposal would require that the public advertisements — which are seen far more widely than any reports on file with the PDC — include the sponsor’s top donors, who may not have any connection to or interest in the specific grassroots lobbying effort.

To illustrate the absurdity of this approach, take the Freedom Foundation as an example.

While founded and based in Washington state, the organization presently has offices in Oregon, California, Pennsylvania and Ohio. As a 501(c)(3) nonprofit organization, it is prohibited by federal law from supporting or opposing political parties or candidates for office but can, within carefully established limits, support or oppose legislation and ballot initiatives. It has staff and contributors from around the country.

Suppose the Freedom Foundation wanted to inform the public of a piece of legislation it believes would be harmful, sponsored a grassroots lobbying campaign to educate voters and encourage them to ask their representatives to oppose the bill and received contributions from 50 Washington residents specifically to support the effort. As required by current law, the Freedom Foundation would disclose the identities of the 50 donors to the PDC and the reports would be posted on the agency’s website.

Suppose further that the top five donors to the Freedom Foundation in the preceding 12 months included two California residents, a Pennsylvania resident and two Washington residents, none of whom expressed any particular interest in the specific legislation that was the subject of the grassroots lobbying campaign and all of whom contributed to the Freedom Foundation months before the legislation in question was even introduced.

Under the PDC’s draft legislation, the Foundation would have to list the names of these five people on each of its grassroots lobbying advertisements costing more than $1,000, falsely suggesting to the public that the five donors knew about, cared about, and sought to influence passage of the legislation through paid advertising.

Second, while the additional disclosure requirement would not provide materially useful information to the public, the potential for harassment of contributors to controversial organizations would be very real.

Because of its work to educate public employees about their First Amendment right to refrain from union membership, national labor unions created and fund a nonprofit organization whose sole mission is to personally target and harass the Freedom Foundation’s staff, members of its board of directors and — if it can identify any — its supporters.

Consequently, were the PDC’s draft legislation to become law, the Freedom Foundation would be forced to refrain from engaging in any grassroots lobbying to protect its supporters from union thuggery, effectively surrendering its First Amendment right to speak out on consequential policy issues before the legislature.

Since there is very little that isn’t subject to controversy these days, a great many other organizations across the political spectrum may find themselves making the same calculation.

Thirdly, as a result, the PDC’s draft legislative proposal would curtail, probably unconstitutionally, at least three of the five freedoms protected by the First Amendment: Freedom of speech, freedom of association and the right to petition the government.

While federal and state courts have upheld a great many laws regulating these core civil liberties, there are still boundaries. Disclosures of campaign finance or lobbying activities must generally advance a governmental interest in curbing corruption of public officials and may not unduly burden or limit free speech.

Because the PDC’s proposal would require public identification of parties who have no inherent connection to the grassroots lobbying campaign, the usefulness of the added disclosure requirements in deterring corrupting or undue influence is, at best, highly questionable.

And the fact that it would effectively require organizations to choose between their freedom to speak or freedom to associate raises serious constitutional concerns.  

In fact, the Washington State Supreme Court has previously upheld Washington’s existing grassroots lobbying disclosure requirements only by interpreting them to encompass contributions specifically intended to support grassroots lobbying campaigns.

In Young Americans v. Gorton, 83 Wn.2d 728 (1974), the court upheld Washington’s newly-enacted laws requiring disclosure of grassroots lobbying expenditures and the identities of contributors to grassroots lobbying campaigns, but recognized that it would be unconstitutional for the state to require an organization to disclose its members simply because the organization engaged in grassroots lobbying:

“We can agree with the contention of YAF [Young Americans for Freedom] that a required disclosure of its membership would be an impermissible and unconstitutional intrusion upon its members’ associational freedoms and the right to privacy. NAACP v. Alabama, 357 U.S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958). However, the YAF’s interpretation of section 20 is a strained one…

Contrary to the assertions of the YAF, this section does not require the disclosure of its membership lists…

If a member or nonmember contributes to a past, present or future YAF [Young Americans for Freedom] campaign which has as its objective the passage or failure of specific legislation, then the reporting of the contribution and its donor is required. If, however, the YAF does not receive funds earmarked for a specific campaign, but expends reportable amounts from its general funds, then there is no need to divulge the names and addresses of the membership… In instances where the YAF receives funds identified or earmarked for expenditure in a campaign which is directed at specific pending or proposed legislation, it is required to report the contributions in accordance with section 20(2)(c). Hence by definition, section 20 requires the disclosure of contributors, as distinguished from members, and therefore, does not violate the rule of NAACP v. Alabama, as an impermissible impingement upon constitutional rights…”

Unfortunately, the PDC proposes to do away with this constitutional balancing act in its entirety under the mistaken and dangerous assumption, common to bureaucratic agencies accustomed to seeing everything as nails to be hammered, that more disclosure and more regulation of speech is inherently good.

Thankfully, it’s early in the process. The draft legislation was prepared by PDC staff but must earn the endorsement of the currently four PDC commissioners appointed by the governor (a full complement is five). If the commissioners decide to accept the staff’s proposal, then it will be submitted to the governor’s office.

If the governor signs off, PDC staff will seek to have it introduced by state lawmakers in the 2022 legislative session as “agency request legislation,” where it will have to successfully navigate the same legislative process as any other bill. 

Washingtonians who wish to encourage the PDC the rethink this misguided proposal may do so by speaking out during the public comment period before the monthly PDC meetings, the schedule of which is available online.

It is also possible to submit written comments to the PDC commissioners and staff at any time by completing this form and selecting “Comment on Commission meeting agenda item.”