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Washington Contribution Limit Violates Free Speech Rights

By Robyn Hagan Cain on January 05, 2012 | Last updated on March 21, 2019

Appellate courts have been handing down plenty of new decisions on election laws as the 2012 election season heats up. The catalyst, of course, was the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which lifted campaign spending restrictions to permit corporations and unions to funnel unlimited funds into “electioneering communications.”

Citizens United prompted a Seventh Circuit decision last month enjoining a Wisconsin campaign finance law, and a Montana Supreme Court decision last week, upholding that state’s limits on corporate spending in political campaigns. (The dissenting opinion in the Montana case, Western Tradition Partnership v. Attorney General, suggests a conflict with Citizens United.)

But while Montana was busy potentially-breaking SCOTUS barriers last week, the Ninth Circuit Court of Appeals fell in line with Citizens United in a Washington election law challenge, Family PAC v. McKenna. In the decision, the Ninth Circuit struck down a Washington state law that prohibited a political action committee (PAC) from accepting more than $5,000 in contributions from one person within 21 days of a general election.

Family PAC, a conservative group created to oppose Washington's domestic partnership law, claimed that the law was an unconstitutional limit on its free speech rights. The group further alleged that it would have received contributions of $60,000 and $20,000 from Focus on the Family, a D.C.-based conservative policy group, but for the $5,000 contribution limit.

The state responded that the law was necessary to provide vote-by-mail voters, whose ballots are mailed 18 days before the election, with information about the big-dollar donors on a ballot initiative before casting their ballots. The Ninth Circuit Court of Appeals, however, ruled that the state's interest in donor disclosure did not justify the cap's significant burden on free speech rights, reports Thomson Reuters News & Insight.

The court noted, "Voters who cast their ballots while the campaigning is still in full swing, however, make a voluntary choice to forgo relevant information that may come to light in the final weeks of the campaign. The state's interest in ensuring that these voters -- the number of whom has not been identified -- are maximally informed is therefore a weak one."

While Family PAC won on its free speech rights claim with regard to the contribution cap, it lost its challenge to a Washington campaign finance law that requires political committees to report the name and address of anyone who contributes more than $25, and the occupation and employer of donors who give more than $100.

Family PAC claimed that the law dissuaded small donors from contributing out of fear of harassment. The Ninth Circuit Court of Appeals disagreed, finding that the government's interest in an "informed electorate" outweighed the "modest" burden on free speech rights.

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