Breaking News: Ninth Circuit Upholds Preliminary Injunction Against Washington State Recall Contribution Law

The opinion in Farris v. Seabrook is here:

Like independent expenditure committees, recall committees in Washington have at most a tenuous relationship with candidates. The contribution limit here is thus materially indistinguishable from the limit we invalidated in Long Beach. Under Washington’s recall system, political committees seeking to recall officials do not coordinate their spending with candidates for office. In the event a recall is successful, the successor to office is appointed by a governmental entity designated by state law — in this case, the Pierce County Council. See Wash. Rev. Code § 36.16.110; Pierce County, Wash., Charter art. 4, § 4.70. Thus, as Washington law is structured, expenditures by recall committees are similar to independent expenditures. See Citizens United, 130 S. Ct. at 910 (defining independent expenditures as “political speech presented to the electorate that is not coordinated with a candidate”). Given that recall committees “do not coordinate or prearrange their independent expenditures with candidates, and they do not take direction from candidates on how their dollars will be spent,” they do not have the sort of close relationship with candidates that supports a threat of actual or apparent corruption. Long Beach, 603 F.3d at 696. Neither the State nor amici, moreover, has presented any evidence showing that contributions to recall committees in Washington raise the specter of corruption, and certainly not in this case. The Wisconsin Democracy Campaign and Washington Public Campaigns, as amici curiae, attempt to bolster the State’s anticorruption rationale with several newspaper articles that describe alleged corruption in connection with recall efforts in states other than Washington. Most of the outof- state recall efforts involve systems different from Washington’s, in which a recall campaign is accompanied by an election to select the successor — a structure that does not exist in Washington. None of the articles describes a circumstance where, in a recall system like Washington’s, in which successors are appointed, a recall committee or its members had a relationship with the state entity charged with appointing  a successor that would raise the specter of corruption. The only evidence of an interaction between the Recall Committee and the Pierce County Council, the appointing body, is the State’s allegation that one Council member posted on the Recall Committee’s Facebook page a description of the procedures that would take place if the recall campaign were successful. There is no evidence that the Recall Committee would have any influence on the Council’s appointment decision upon a successful recall. For this reason, “[o]n this record, . . . an exchange of political favors for uncoordinated expenditures remains a hypothetical possibility and nothing more.” FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 498 (1985).

But the opinion includes a key footnote:

8 Plaintiffs’ likelihood of success might be different if recall elections in Washington were accompanied by an election for the successor, as is the case in many states, and a recall committee coordinated its expenditures with one of the candidates for office. That circumstance would be similar to cases in which contribution limits have been upheld. See, e.g., McConnell v. FEC, 540 U.S. 93 (2003); Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981). Furthermore, as our analysis implies, the outcome might be different if there were evidence that contributions were being made with a “wink and a nod” from Council members indicating that a particular candidate would be appointed. Long Beach, 603 F.3d at 697 n.7.

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