The ruling comes just two months after Costco dumped a record $22 million-plus into passage of its liquor deregulation measure, Initiative 1163. That deluge of money included a record single donation of $8.9 million that Costco gave just before the last-minute deadline.
The court ruling opens the door to more large donations closer to election days. But the volume of late donations might be tempered by Washington’s vote by mail system in which many ballots are returned early – and late donations still must be disclosed within 24 hours.
The conservative Family PAC of Washington had brought suit in connection with disclosure requirements that opponents of gay rights faced during the Referendum 71 campaign in 2009. The statewide ballot measure passed, and R-71 gives same-sex couples all the state rights of marriage if couples are registered on Washington’s domestic partnership registry.
The Family PAC questioned the state’s limit of $5,000 for last-minute donations, but it also was trying to shield small donors’ names from disclosure.
The 9th Circuit’s order is here.
James Bopp Jr., the Indiana based lawyer on this disclosure case, also led legal efforts to seal the names of voters who signed R-71 petitions and thereby forced the same-sex rights issue onto the ballot in November 2009.
The U.S. Supreme Court rejected Bopp’s disclosure arguments on broad grounds, and U.S. District Court Judge Benjamin Settle ruled earlier this year in favor of disclosure, despite claims by some activists they felt intimidated or threatened by R-71’s gay activists.
John Kramer of the conservative Institute for Justice, which filed a friend-of-court brief in the case, called the ruling a mixed decision for the First Amendment. That is because court upheld the claim that a limit on donations as “a ban on political speech” but it also upheld state laws requiring disclosure of names.
The Public Disclosure Commission welcomed parts of the ruling but was disappointed to see the loss of prohibitions from Initiative 276, which voters passed in 1972.
“The Commission is pleased that the disclosure requirements were upheld,” PDC spokeswoman Lori Anderson said, adding in an e-mail: “Disclosure of donor addresses for more than $25 and employer/occupation for individuals who give more than $100 was upheld. The 24-hour disclosure provision wasn’t part of the package under scrutiny.”
Anderson said the statutory prohibition found unconstitutional today is this:
In its summation, the 9th Circuit’s order says:
The 9th Circuit Court also says the the 24-hour disclosure requirement for last minute donations undercuts the need for a $5,000 limit in the Internet era:
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 or narrowly tailored to effectuate the original purpose.
Lawyers for state Attorney General Rob McKenna defended the state’s law. The name of the case is Family PAC of Washington vs. McKenna.
