The Volokh Conspiracy

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Free Speech

Wash. Sup. Ct. Upholds Campaign Finance Voucher Tax

Quite correctly, I think.


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.