The legislative director of the ACLU of Washington says the proposed change to the city’s rules about campaigning using city resources is vague and potentially unconstitutional.
The proposed change, which was introduced by Mayor Ed Murray and Council Member Tom Rasmussen after Council Member Kshama Sawant held a town hall meeting where her campaign was also gathering signatures to get her name on the ballot, expands prohibitions on using city resources for campaigning to specify that if a council member organizes a city-sponsored event, his or her campaign can’t also have an active presence at that event.
Both earlier and current drafts of the bill “raise significant constitutional issues,” the ACLU’s Shankar Narayan wrote in an e-mail to council members yesterday afternoon. They “attempt to greatly expand the reach of the ethics ordinance barring ‘use of public office facilities in campaigns,'” Narayan wrote, “and do so in a way that muddies the water around political speech—in this case, core political speech that receives the greatest amount of First Amendment protection.”
The mayor’s staff and his supporters on the city council say the change is simply a clarification of the already existing ban on using city resources for campaign purposes.
Sawant said she believes the change will make it harder for grassroots campaigns to spread their messages. She also criticized the fact that the new rule would bar the campaigns of city council members who organize city events from those events, but would allow their competitors to be present. In other words, at a Sawant-organized town hall, her campaign couldn’t have a table there, but her competitors could.
“To me, this is not a matter of free speech at all,” Council Member Sally Bagshaw, who supports the change, said in response to Sawant’s criticisms. “It is a complete matter of integrity and complying with the ethics rules.”
The ACLU’s Narayan calls out a few terms in the legislation he believes make it especially hard to interpret. Even though a recent draft of the bill has some added specificity—no campaigning within 300 feet and one hour of any event organized by the elected official in question—it’s still too vague, he writes.
Here’s the latest version of the language in question:
Use of any of the facilities of a public office or agency, directly or indirectly, for the purposes of assisting a campaign for election includes, but is not limited to, an elected official, or the official’s agent, engaging in election campaign activities within 300 feet and one hour of any official city public event that is organized by that elected official or any employee of the official’s office.
“Given that the ordinance involves constitutionally protected speech,” Narayan writes, “it is especially important that it be clear exactly what speech and conduct is prohibited to avoid an unconstitutional chilling effect.”
Terms like “agent” and “engaging in election campaign activities,” he writes, “raise a vagueness problem because they could be interpreted in widely varying ways.”
Because the proposed changes would affect speech in public places, including streets, parks, and sidewalks, “the government bears the burden of justifying the regulation as necessary to serve a compelling state interest and of proving there is no less restrictive alternative,” Narayan writes. And he doesn’t believe this proposal (as it currently exists) meets that high standard.
Here’s a theoretical scenario he lays out in order to illustrate how the rule would work (emphasis added by me):
If an elected official were to organize an official city public event at a street fair (say a booth promoting the city’s bike lane program), and then a group of the official’s supporters were to hand out campaign leaflets nearly a football field away from the city booth, that activity might be deemed unethical under some interpretation of the proposal. The official’s supporters would have a strong argument that this would render the ordinance illegal.
In an e-mailed statement reacting to the ACLU’s comments, Sawant called the bill an “ill-conceived attack on First Amendment rights to distract from the massive discontent over skyrocketing rents.”
Mayoral spokesperson Viet Shelton says the mayor believes there’s a way to “work with the ACLU to refine this language” without scrapping the whole proposal. “We believe we will be able to come together with the ACLU to craft legislation and language that will clearly prevent elected officials and public resources from being used to assist their campaigns,” Shelton says. Council President Tim Burgess said Wednesday he would forward the legislation on to the Seattle Ethics and Elections Commission for review in early June.
