James Madison Center for Free Speech
1 South 6th Street
Terre Haute, IN 47807
www.jamesmadisoncenter.org

Human Life of Washington ("HLW") filed suit in federal court challenging Washington's restrictions on it for doing issue advocacy. Issue advocacy is protected from state restriction by the First Amendment, as the U.S. Supreme Court recently reaffirmed in the Wisconsin Right to Life v. Federal Election Commission decision. Washington's vague and overbroad election laws, however, impose onerous burdens on issue advocacy, including classifying HLW as a "political committee" ("PAC"), if it were to engage in its issue advocacy. A recent decision of the U.S. Court of Appeals for the Ninth Circuit held that a state may not impose PAC status or PAC-like burdens on an organization that engages in issue advocacy.

HLW has long opposed assisted suicide as part of its prolife advocacy seeking legal protection for innocent human life from fertilization to natural death. Ordinarily, HLW is free to do issue advocacy about assisted suicide. But because efforts are now underway to qualify and pass a ballot initiative ("I-1000") legalizing assisted suicide, HLW's issue advocacy on the same subject would be restricted by vague and overbroad state laws regulating "political committees," "independent expenditures," "political advertising," and any "rating, evaluation, endorsement or recommendation."

HLW's planned communications would not expressly advocate for the passage or defeat of I-1000, but the challenged provisions are imposed by Washington where an organization merely makes communications that "support" or "oppose," or are "for" or "against," a ballot initiative. These terms are undefined and inherently vague, so HLW faces a clear danger that if it makes communications opposing assisted suicide it will be considered to have opposed I-1000, triggering all the burdens put on a PAC by Washington law.

Washington also imposes PAC status on groups with "a major purpose" of passing or defeating ballot initiatives (determined on the basis of activity judged under the flawed support/oppose test) instead of the test mandated by the U.S. Supreme Court, which permits imposing PAC status on where unambiguous campaign activity is "the major purpose" of an organization. James Bopp, Jr., the lead attorney representing HLW states: "This case is simple. Human Life of Washington wants to freely engage in constitutionally-protected issue advocacy and not have Washington burden it with heavy 'political committee' requirements. Under controlling decisions by the United States Supreme Court and the Ninth Circuit, Washington may neither restrict issue advocacy nor impose PAC burdens. Washington has substituted two vague and overbroad constitutional tests for the tests required by the U.S. Constitution. The challenged provisions should swiftly be declared unconstitutional and Washington should be enjoined, both preliminarily and permanently, from enforcing them."

The case is titled Human Life of Washington v. Brumsickle, and is in the U.S. District Court for the Western District of Washington. A copy of the Complaint and Motion for Preliminary Injunction are available at the James Madison Center's website www.jamesmadisoncenter.org [scroll down left side to find documents].

James Bopp, Jr. has a national campaign finance and election law practice with Bopp, Coleson & Bostrom. He is General Counsel for the James Madison Center for Free Speech.

UPDATE

There has been some confusion about the recent ruling in our court case. We had requested a preliminary injunction to prevent the state from enforcing what we believe are unconstitutional provisions in Washington law, while we pursued the case. We were denied the preliminary injunction only. We are still pursuing the case and seeking a summary judgement. The good news is that the court has agreed to the schedule proposed by our attorneys. Ultimately, we believe we will prevail.

COURT FILINGS AND ORDERS