Free Speech

Wash. Sup. Ct. Upholds Campaign Finance Voucher Tax

Quite correctly, I think.

|The Volokh Conspiracy |

Today's opinion in Elster v. City of Seattle upholds the "Democracy Voucher Program," under which a new property tax assessment (at a rate of two cents per $1000 of assessed value) "provides vouchers to registered municipal voters and qualifying residents," which they "can give … to qualified municipal candidates, who then may redeem them for campaign purposes." ("To be eligible to receive vouchers from municipal residents, municipal candidates must obtain a required number of signatures and contributions from qualified municipal residents.")

The Court rejected a Janus compelled speech/funding argument, holding that the government may impose a fee that it then distributes in a viewpoint-neutral way to support private speech. I think that's quite right, both under Board of Regents v. Southworth (2000), which upheld a public university's system for funding student groups out of mandatory student fees, and by analogy to lots of other programs for government funding of private speech out of tax funds: As the court points out, for instance, the government prints at taxpayer expense ballot pamphlets with statements by ballot measure supporters and opponents.

Indeed, government programs that let students spend tax money for tuition at private schools (whether K-12 schools or colleges, as with the GI Bill and similar programs) are very similar: There too tax funds are used to support private speech that some taxpayers may disapprove of. But there's no constitutional problem with that, and likewise there's no problem with this.

I think Janus was mistaken (see Will Baude's and my article on the subject), but I think this program is constitutional even accepting Janus.

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  1. It may be constitutional but it’s a dumb policy. The intent was to “get the money out of politics”. Instead, this will entrench incumbents even more than they already are (because of the minimum signatures/contributions rule) and will increase the money in politics. This will just become the new floor – all the existing fundraising still exist, now on top of the vouchers.

    And, of course, this program will come with it’s own inevitable bureaucracy, bloat and fraud. I’m not sure who this program will benefit but it sure won’t be us taxpayers or voters.

  2. “It may be constitutional but it’s a dumb policy.” Yep, super stupid!

    Only those trained by progressive educators will argue otherwise.

    1. You don’t like progressive educators? Do you prefer fourth-tier (or unranked) conservative-controlled schools that suppress science and warp history to flatter superstition and dogma, WJack? Are you a big fan of Regent, Oral Roberts, Hillsdale, and the other right-wing rube factories? Do you enjoy the Volokh Conspiracy’s regular partisan ankle-biting aimed at the Harvards, Yales, Berkeleys, and Reeds?

      Carry on, clingers.

      1. I prefer educators that don’t hate America and Democracy, i.e., not Progressive activists.

        1. The liberal-libertarian mainstream alliance built and prefers modern America. The clinger coalition disdains today’s America, pining instead for the America of ‘good old days’ that never existed.
          Mostly, guys like AustinRoth long for the return of the backwardness and bigotry that their betters have diminished in America.

          AustinRoth, like most to-be-replaced right-wing losers, also hates America’s standard English.

      2. “schools that suppress science and warp history to flatter superstition and dogma”

        Yeah, too many “educators” believe in silly things like sky fairies or free healthcare…

      3. “…ankle-biting aimed at the Harvards, Yales, Berkeleys, and Reeds?”

        Hey Arthur, if you like Harvard so much, maybe you could get a job as dean of one of their residential houses? Or perhaps there is something in your background that would disqualify you?

  3. In practice, you are both wrong.

    This helps third party candidates who have no problem getting signatures but don’t have the deep pockets of establishment candidates.

    1. “helps third party candidates ”

      So totally wasted then.

      1. “So totally wasted then.” For sure!

        The fundamental problem is a huge number of net tax consumers are being supported by an insufficient number of net tax producers. The simple solution is restriction of the right to vote to net tax producers, active military, and veterans.

        Of course clueless products of progressive educators will again not agree.

        1. Consent of the governed means consent of the governed.

          The fundamental problem is just policies you don’t like.

          1. “The fundamental problem is just policies you don’t like.” Pot / Kettle argument.

            Those who pay the piper ought to call the tune, otherwise the net tax consumers will vote themselves benefits till the cows come home.

            1. “Those who pay the piper ought to call the tune…”

              I’m sure the net tax consumers will be very persuaded by this argument.

              1. Which is why giving them the vote in the first place was a mistake. Once you give people who shouldn’t have the vote the vote, you can’t take it away without their voting for it. And no one will ever vote away their own voting “rights.”

                1. Your mistake is thinking that their right to vote is something you owned but gave away to them. They took it, in exchange to allow you to continue to live and have private property. Do you not understand basic child-level numeracy?

            2. I’m not making a policy case like you were, I’m making a moral one.

              Your recent pivot to a moral argument is arguing that of the people by the people and for the people is BS, and really what should rule is money.

              The government is not a fee-for service organization.

              1. If people had the moral fortitude to know that it’s wrong to vote yourself free stuff, it wouldn’t be an issue.

      2. The lesson Bob teaches is to never try.

    2. No it doesn’t. A study after the first election using them showed incumbents got most of them. Funny how that works.

      1. I think you’re asking the wrong question. The question should be if third party candidates did marginally better with this policy, not whether they suddenly started getting majorities.

        1. While I agree that’s the right metric, SarcastrO, I don’t think the evidence supports your hypothesis. Granted, we only have one election’s worth of data so far (that I know about) and it was limited data at best. But do you have anything that supports your hope that it was in any way successful at weakening the incumbent strangleholds?

          Much as I like internet communities, this is a situation where I wish I knew you in person so we could bet a beer on it.

        2. A more expensive loss is still a loss.

          1. Though potentially a headline-getting and coalition-building loss, jubulent.

            Is this a new conservative thing? Lets not even try with third parties? I suppose it’s in keeping with their general skepticism about democracy.

            1. No, I think it’s an old thing.

              Third parties – good.
              Stealing money from taxpayers on the pretext of supporting third parties while actually sending that money to incumbents – bad.

              1. Publicly financing campaigns to even the playing field has a long history. To characterize it as pretext to help incumbents is…well, it’s just wrong.

                1. Not all public financing of campaigns automatically helps incumbents, though most do. I still think this one will inevitably have that effect because of the way they structured their rules.

                  And I’m cynical enough to think that at least some of the people behind this initiative knew that and even planned for it – which is why I called it a pretext.

                  1. What in the structuring makes you skeptical? A general grant to all candidates above a signature threshold seems pretty standard to me…

                    1. It is standard. And that standard approach has proven to be very incumbent-reinforcing and to work against the third-parties who have fewer resources with which to meet the signature threshold.

                      The approach in this case is very slightly better than some in that the money is not also allocated based on the ratio of signatures but it is still allocated through a means that is highly subject to skewing based on name recognition. And incumbents have a huge advantage in name recognition.

                      Less bad would be a signature threshold leading to a fixed and equal dollar amount for each candidate – as long as the candidates can’t spend any more. A couple other countries use such schemes. But I believe that model has already been held to be unconstitutional. (Those other countries don’t have that pesky First Amendment to deal with.)

                    2. I don’t think we have the metrics about whether it is incumbent-reinforcing or merely insufficiently effective to make a dent in the current environment.

                      Signature ratios do sound like BS – I hadn’t heard about that little trick before now.

                      Your final paragraph is full public funding of campaigns, which I’d be all for but happens only rarely. I don’t think it’s unconstitutional, however – spending restrictions are not where speech issues come in.

                    3. “Your final paragraph is full public funding of campaigns, which I’d be all for but happens only rarely. I don’t think it’s unconstitutional, however – spending restrictions are not where speech issues come in.”

                      Actually full public funding kind of has been held unconstitutional.

                      As I understand it, they can force a candidate to not accept donations in return for the public funding, but IIRC there is standing Supreme Court precedent that they can’t bar a wealthy candidate from spending his own money.

                    4. Ah. Thanks for the detail on that front. That even seems about right (if you assume money is speech).

                2. “Publicly financing campaigns to even the playing field has a long history.”

                  Except never in that entire history has it actually managed to genuinely level the playing field.

            2. Third parties have been trying for years. They have tried before the modern level of campaign finance reform. Lack of funds is not an issue with third parties. Third parties fail because people don’t vote for them.

              Government funding third parties is not going to get rid of the problems they face getting elected. This is just a new way for incumbents to fleece taxpayers.

  4. “So totally wasted then.” For sure!

    The fundamental problem is a huge number of net tax consumers are being supported by an insufficient number of net tax producers. The simple solution is restriction of the right to vote to net tax producers, active military, and veterans.

    Of course clueless products of progressive educators will again not agree.

  5. Would a similar program that was only for incumbents, or only or Democrats, be constitutional? I doubt it. This is clearly compelled speech.

    1. Reading the above, an incumbent-funding program would pass Constitutional muster, though the optics might be dodgy. Dems would not be viewpoint neutral.

      I find whenever I am writing the word ‘clearly’ I should go back and think carefully about whether I should substitute that with an explanation, because it’s all too often my point of view making cognitive leaps.

  6. I sense an opportunity for scheming…

    1. Declare oneself an a “candidate” with the needed qualifications.
    2. Obtain donations by promising “prizes” “Pledge goals” to those who donate. Using these government demanded funds of course.
    3. Use these donations on “Campaign expenses” for “consulting” from your good friend/brother/uncle
    4. Profit.

    1. An off-beat unserious campaign could successfully lure donations from the many people who think giving to the major parties is a waste (and it is!). For example, a “None of the Above” candidate could make a relevant political statement while accruing certain benefits, within the bounds of the law of course.

      1. Montgomery Brewster could buy new jerseys for the Hackensack Bulls!

  7. Your objection to Janus appears to rest on two legs:

    1) if the state did something different (reduced salaries and paid the union directly) then mandatory union dues are fine. As my law professor used to say, if you change the facts then you can get whatever result you want. I don’t think many people would have argued that this new funding arrangement violated employee First Amendment rights.

    You argue that this distinction is immaterial. I disagree. In the existing framework the employees (collectively) decide whether and how much union dues should be collected, who represents the employees, what benefits to seek, and what they’re willing to give up. In your proposed framework the government controls all of these issues.

    2) compelled payments are not speech. This, as you recognize, would require overturning more than a half century of Supreme Court precedent. It would also open the door to more restrictive campaign finance laws, inter alia, because I’m not sure how you get around the “money isn’t speech” problem.

    You then argue that agency fees and taxes are indistinguishable. I disagree for a simple reason: agency fees are not paid by all taxpayers; and all voters don’t have a say in how those agency fees are spent.

    These distinctions are important because they support the final decision in this case as well as in Janus. All taxpayers bear the burden of this program and all voters decide how to spend the money (as stupid as the policy is). If the law imposed a flat tax of $1000 and in return for paying the tax you could donate $1000 to a candidate then this would be a lot closer to Janus.

  8. The Court rejected a Janus compelled speech/funding argument, holding that the government may impose a fee that it then distributes in a viewpoint-neutral way to support private speech.

    Except it is the opposite of viewpoint neutral. To a man and woman, the politicians (with any reasonable chance) regularly work to increase their power, and thus reduce freedom.

    It is wrong for the government to fund speech to reduce my freedom. There is nothing neutral about this.

    1. I must be misunderstanding this.

      Are you arguing that any of political campaigns, even if across the board, is funding a particular viewpoint because the very act of winning an election is growing government?

  9. Professor,

    I can only give my experience with the student activity fee, but when we ran the student government (many years ago) we made it a policy not to condition funding on obtaining signatures. To do so was inherently viewpoint discriminatory because it disadvantaged less popular groups. Same here.

    1. To further explain my point…if it is the case that “[t]o be eligible to receive vouchers from municipal residents, municipal candidates must obtain a required number of signatures and contributions from qualified municipal residents”, then the distribution is no longer viewpoint neutral as an unpopular candidate/measure could not qualify.

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