In October 2015, Washington State Attorney General Bob Ferguson (D-Wash.) accused the Freedom Foundation of breaking the law by not reporting its pro bono legal work as a political contribution. The Freedom Foundation helps workers opt out of union dues if they disagree with a union’s political stance, and Ferguson supports unions. A superior court rightly overruled his ridiculous attack on the foundation’s pro bono work, but Washington State’s Supreme Court ruled against the foundation. Now the Freedom Foundation is appealing this important case to the U.S. Supreme Court, with powerful implications.
“This case has the potential to do for state campaign finance regulations what Citizens United did for federal law,” Eric Stahlfeld, the foundation’s chief litigation counsel, told PJ Media this week. He was referring to Citizens United v. FEC (2010), in which the Supreme Court ruled that groups of citizens (“corporations” in legal terms) have free speech in politics and can pay to promote political messages. This limited the impact of campaign finance laws at the federal level, and prevented the government from penalizing a nonprofit (Citizens United) for publishing a video about a political candidate (Hillary Clinton).
Stahlfeld argued that just as Citizens United protected free speech in politics against a potentially partisan government action, so the Supreme Court could use this Freedom Foundation case to protect the right of nonprofit groups to offer pro bono legal services without being penalized by overboard campaign finance laws.
“Some of the most partisan prosecutions in the campaign finance arena are actually occurring in the states, so this case affords the Supreme Court an opportunity to clearly define appropriate limits on such abusive and unconstitutional practices,” he told PJ Media.
Just like the Hillary Clinton video in Citizens United, “the activities of the Freedom Foundation in this case were also constitutionally protected speech and we believe the Supreme Court will affirm this if [the writ of certiorari] is granted.”
In a video on the case, Freedom Foundation Executive Vice President Brian Minnich explained the context of the prosecution.
The Freedom Foundation fights against forced union participation by telling workers they have the right to leave their unions. “Unions do everything they can to hide this information and suppress their members’ rights,” Minnich explained. “But when people find out they have a choice, they desert the unions in droves.”
“But the big labor bosses have too much at stake not to fight back and they fight dirty. In 2015, SEIU created a shell group with a single goal: to attack and harass the Freedom Foundation. Meanwhile, the unions themselves, with the help of compliant politicians like Washington Attorney General Bob Ferguson, filed politically-motivated lawsuits hoping to drain our resources and weaken our resolve,” he recalled.
“One nakedly political lawsuit from Ferguson alleges the Freedom Foundation should have reported its pro bono legal assistance to citizen activists who came to us for help after petitioning their local government to adopt labor reform policies,” Minnich said. “Nonprofit groups of all stripes commonly offer free legal help to people whose rights have been violated by government. The Freedom Foundation broke no laws because defending civil liberties is not a political contribution and a superior court judge agreed.”
When the Washington Supreme Court ruled against the Freedom Foundation, “four justices on the state Supreme Court sided with us that when political speech laws are unclear the law should side with citizens, not the government. We believe this is a serious violation of our First Amendment Rights and we’ve appealed to the U.S. Supreme Court… What makes our case so unique is that the government was actually complicit in what was clearly a political payback.”
Indeed, in the 2016 cycle alone, Ferguson received $112,951.46 in contributions from labor unions, according to VoteSmart. He recused himself from a case involving the SEIU due to his labor connections.
Ferguson applied a ridiculous double standard in the Freedom Foundation case. While he prosecuted the foundation for pro bono legal services on the pretext that these were effectively political contributions, he refused to prosecute unions for doing the same thing. He defended this with a statement that Stahlfeld called “absurd on its face.”
“The state only said that no one had complained and so they didn’t look into it because they have limited resources,” the foundation lawyer said. “This is absurd on its face and contradicted by the million-plus dollars Trump-hating Attorney General Bob Ferguson has spent prosecuting conservatives, which is many times the amount the same office spends against liberal groups.”
Stahlfeld said the foundation decided to appeal the case to the Supreme Court “because the decision as it stands has uniquely chilling Constitutional implications.”
“Not every ruling we litigate is, literally, worth making a federal case over. This one is because it would allow special interests working in partnership with their friends in government to limit the ability of nonprofit advocacy organizations to provide legal representation for those who need but can’t afford it,” he explained.
“The Foundation is asking the Supreme Court to protect the rights of every citizen in the entire county who wants to get involved in political activity, to participate without fear that an oppressive government will pursue them for failure to comply with obscure and opaque rules applied at the government’s whim,” he added. “This case presents the Court with the opportunity to protect political freedom for all of us.”
Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.