A recent state of Washington Supreme Court decision could have a significant impact on the Austin City Council’s interest in a controversial Seattle campaign finance program.
In a move that surprised many, including the attorney who brought the case, the Washington Supreme Court has agreed to hear Elster v. Seattle, which argues that Seattle’s Democracy Voucher program forces property taxpayers to support political speech they might not agree with.
As The Texas Monitor reported in February, the Seattle voucher program collects $3 million a year in property taxes and distributes $100 vouchers to registered voters who can donate them to local political candidates of their choice. The Austin plan is modeled on Seattle’s but the details have not been finalized.
The plaintiffs in the case, Mark Elster and Sarah Pynchon, say the Seattle program discriminates against them because, as property owners who live elsewhere, they are forced to help fund a program they cannot vote for or receive any donations from.
A lower court in Seattle dismissed the Elster case. On Dec. 17, however, Washington’s Court of Appeals passed on a review and sent it on to the Supreme Court.
Supporters and opponents say the sudden change in the fortunes of the case, with its implications for public campaign finance plans across the country, is very likely due to the U.S. Supreme Court’s decision in June in Janus v. the American Federation of State, County and Municipal Employees, Council 31.
The Janus case overturned more than 40 years of precedent in political speech case law. In a split ruling, the court found that public employees who aren’t union members can’t be required to pay fees to unions because that money may fund political activity. Such a requirement violates the employees’ First Amendment rights, the court ruled
Progressive publications that have championed democracy voucher programs, like In Our Times, have expressed concern that the Janus ruling could undermine a variety of taxpayer underwritten programs created around the country to help fund fledgling political campaigns like the six-to-one taxpayer match in New York City and the state funding for campaigns in Maine.
“A promising program designed to remove big money from politics and increase the impact of small donors on elections may be careening toward catastrophe in the courts,” Slate wrote just after Christmas.
In August, county commissioners in Albuquerque voted against adding a ballot question that would have given voters the chance to enact a similar program there. Advocates have pledged to get an initiative on the ballot this year that would go around the commissioners’ court and create the program.
In Austin, the city council is expected to consider the Democracy Dollars program in the coming year. The council’s last conservative member departed in November, and a current mayor has described his reelection as a mandate to “do stuff.”
Under the program that was proposed in Austin, political candidates for mayor or council would have to register to participate. They would be required to collect a certain amount in donations from a certain number of contributors in order to qualify for contributions from Democracy Dollars.
In Seattle, the city may have created legal problems by targeting its public campaign funding program to property owners. David Keating, president of the Institute for Free Speech, a First Amendment and elections advocacy nonprofit based in Alexandria, Va., said the Washington high court will be hard-pressed to ignore the targeting of a specific group for funding.
Keating, who opposes government funding of campaigns, said the Janus ruling strengthens the hand of those who oppose Seattle-like programs. Programs like those in New York City and Maine have been upheld in the past, but may not survive a challenge after a ruling that says individuals may not be dragooned into political funding systems.
“What you have in these cases is government giving your money to one side or another,” Keating told The Texas Monitor.
After one local election cycle, evidence of the voucher program’s effects is mixed, according to Brian McCabe and Jen Heerwig, two sociology professors at Georgetown and Stony Brook universities respectively, who have produced the most comprehensive research on the Seattle program to date.
McCabe is a believer in the power of the voucher system to build participation and boost profiles of untested candidates.
Their policy paper showed that thousands more people contributed to local candidates in 2017 as compared to 2013. Low-income candidates from poorer districts made greater use of the vouchers.
The research also showed, however, that entrenched voter blocs —wealthy, white and older residents — made greater use of their vouchers, while incumbents and those already familiar with the local political landscape were the biggest beneficiaries, he said.
“I suppose you can spin our work either way,” McCabe said. “If the goal is a campaign finance system that looks more like the electorate, then vouchers are pushing us in the right direction.”
Ethan Blevins, an attorney for the Libertarian-leaning Pacific Legal Foundation, which brought the Seattle case, said he fully expects the Austin council to at least consider a democracy voucher program. However, if Austin waits for a conclusion to the Seattle case before acting, that might push the debate back to the end of 2019, he said.
“We’ve raised constitutional issues that, if we get a favorable ruling, would apply across the country,” he said. “States will be watching to see what happens. Austin will be watching this, too.”
Mark Lisheron can be reached at [email protected].