McKenna says I-122 may be controversial but it is legal

Seattle voters overwhelmingly approved the “Honest Elections” initiative that supporters believe will give power back to the average citizen. KTTH’s Todd Herman is not only skeptical of the initiative reaching that goal, but also wonders if the policy is even legal.

Former Washington State Attorney General Rob McKenna told Herman that, as far as he can tell, the first-of-its-kind initiative is legitimate.

“Because the public treasury is used to fund campaign financing, along with everything else the government does, it’s not a violation of the Constitution under any case I’m aware of,” McKenna said.

Related: Seattle democracy vouchers would rely on failure to achieve success

The voluntary program for public financing would provide $100 in “democracy vouchers” to voters, who could then contribute those to the candidate of their choice. Candidates could volunteer to take part in the programs and be eligible for the vouchers. The program will be funded through a property tax.

Herman noted a few of his concerns, namely that the voucher treats one class of property-owner differently than others, and that it forces conservatives to pay for political speech they don’t agree with.

McKenna said that property in Washington needs to be taxed uniformly, meaning there can’t be different rates for different people depending on the value or type of property. However, he couldn’t find a reference in I-122 that would specifically treat one property owner differently than another. In terms of the larger question &#8212 whether taxpayers can be compelled to subsidize somebody else’s political speech by contributing tax dollars to campaign finances &#8212 he said the government can do that.

“Public financing of campaigns has been around for a while,” he said. “It exists in a number of jurisdictions in our country and, although I haven’t looked at the case law on the question, I presume that the reason it’s been upheld when challenged is that it’s too indirect of a connection.”

In other words, McKenna said, you pay taxes, and the government turns around and takes some money out of the treasury, not necessarily any exact tax dollars for this initiative.

“Your money gets mixed in with everyone else’s,” he said. “Some amount of that is then made available for this particular purpose of campaign financing and so it’s probably too remote a connection to violate your rights.”

There are some cases that would violate laws of forced association, McKenna said, such as a case he won at the Supreme Court level involving a group of non-union teachers who were being required to pay collective bargaining fees that were spent on politics.

“There you did have a First Amendment violation because these teachers were having their money forcibly taken and spent for political causes they expressly did not support,” he said. “So, you’re right, the principal exists, but it doesn’t exist when it comes to public financing of campaigns in general.”

Herman remained troubled by the explanation, saying he couldn’t believe that the First Amendment would allow for City Council member Kshama Sawant to come directly to him and demand money for her campaign.

Courts will throw the kitchen sink at anti-tax initiative

“But she could hire a government to do that?” Herman asked. “That government could come to me and take my money and say, ‘We’re going to use this money to fund political ideas you abhor.'”

McKenna said yes.

“Most people don’t like the idea of public funding campaigns,” he said. “It tends to be a cause that people on the left are a lot more fond of than centrists and conservatives are.”

Herman called I-122 a “sweetheart deal” for unions because “it will be community agitators and unions that go pick up these democracy vouchers.” McKenna, again, agreed.