Supreme Court right to uphold Seattle Democracy Vouchers

Proponents of small dollar donor-based campaign finance reforms breathed a sigh of relief Monday when the U.S. Supreme Court announced it would not take up Elster v. Seattle, a case challenging the constitutionality of Seattle’s innovative and successful democracy voucher system. The Supreme Court’s refusal to hear the case—without any noted dissent—means the public financing program is safe for the foreseeable future. It also gives a legal green light to other jurisdictions thinking of adopting a version of this important program.

The case arises from Seattle’s innovative mechanism for publicly financing local elections. Each election cycle, all city residents are given $100 in democracy vouchers, which work as coupons that Seattleites may give to local political candidates. Candidates do not need to participate, but those candidates that opt-in to the system can redeem these vouchers for cash to use in their campaigns. The system has now been in place for two cycles, 2017 and 2019. Last year, participating candidates relied on tens of thousands of these vouchers as their main source of election funds even as independent expenditures by Amazon and other large corporations flooded the city with advertising in a failed attempt to win a business-friendly city council.

The constitutionality of publicly financed elections has long been viewed as a matter of settled law by court observers. Public financing is a voluntary program because no candidate has to opt-in to receive vouchers. Thus, the program does not infringe on anyone’s speech or ability to raise money. Instead, it provides an alternative method of fundraising for those who wish to rely primarily on small donations from citizens rather than large donations from wealthy individuals and corporate interests.

The plaintiffs who sought to end this program are Mark Elster and Sarah Pynchon. Backed by the right-wing Pacific Legal Foundation, the plaintiffs argued that democracy vouchers, which are funded by a small property tax increase, are a form of “compelled” speech on unwilling taxpayers. The chain of compulsion is tenuous: the plaintiffs pay taxes (like everyone who owns property in Seattle), and some portion of their tax dollars go toward the democracy vouchers city residents use to fund candidates, and those vouchers in turn may be used to fund campaigns for candidates with which the plaintiffs disagree. They claim this meant that they were “forced” to fund the campaigns of these candidates they did not prefer. In support of this argument, they relied on a line of reasoning from the Supreme Court’s Janus decision, which banned mandatory dues payments by members of public employee unions.

As the lower courts recognized—and as the Supreme Court thankfully did not disturb—if that line of reasoning were accepted, it would undermine the very concept of public expenditures. Individual taxpayers often disagree with a particular spending decision, but that doesn’t give them a right to object to every dollar spent by the government. After all, if the plaintiffs here were successful, then the government could never spend on public art, because some taxpayer may object to the money being used to fund a statute of a civil rights leader; or the government could not run public service ads, because some taxpayer may not like the anti-smoking or pro-animal-adoption messages; or the government could not even fund public schools, because one taxpayer might not want to subsidize teaching of evolution or art or European history. In other words, taken to its logical extreme, the argument is not about the First Amendment or campaign funds at all. Instead, it is a pretzel logic attack on the very idea of citizen democracy and representative government.

Fortunately, the Supreme Court let stand the decision rejecting this broadside attack and permitting the program to exist. That is a good thing, because the Roberts Court, in Citizens United and other campaign finance decisions, has consistently ruled in favor of big money’s hold on American politics. It has not only radically expanded the doctrine that money is identical to speech, but it has also come up with creative ways to gut many innovative approaches to placing limits or regulations on donations and fundraising.

Given that record, the democracy reform community should celebrate this victory. Public financing survives—and, in Seattle and elsewhere, it thrives. Let’s thus hope this decision signals a let-up in the Supreme Court’s unraveling of what remains of campaign finance law.

Jason Harrow is a Los Angeles attorney and executive director of Equal Citizens. Nick Nyhart is former president of the Every Voice Center.