Jurisprudence

Janus Unleashed

In 2018, SCOTUS went after public-sector unions. Next up: a case that could decide the fate of public election financing.

A union member protesting outside San Francisco City Hall holds a sign reading "STRONGER THAN JANUS."
Union members hold signs during a rally outside of San Francisco City Hall on Feb. 26.
Justin Sullivan/Getty Images

A promising program designed to remove big money from politics and increase the impact of small donors on elections may be careening toward catastrophe in the courts.

Last Monday, the Washington Supreme Court agreed to hear a challenge to Seattle’s “democracy vouchers,” an innovative public financing scheme that’s already spreading to other cities. The measure has already allowed more young people, women, racial minorities, and low-income voters to contribute to candidates. But state courts have taken the constitutional challenge to the program seriously—and the U.S. Supreme Court may eventually conclude that the law violates the First Amendment. Indeed, this case could test how much damage the court’s decision in Janus v. AFSCME will do to campaign finance reform.

Passed in 2015 via ballot initiative, Seattle’s Democracy Voucher Program marks an effort to amplify the voices of nonwealthy Americans in city elections. The law imposes a tax on Seattle homeowners (which costs the average household about $11.50 a year), then places the money in a pot used to fund campaign finance vouchers. Each election cycle, every voter receives four $25 vouchers that they can contribute to certain candidates. (Citizens and green card holders who do not vote can also obtain vouchers.) To qualify for voucher funding, a candidate must first gather $10 donations from at least 400 Seattle voters to prove their candidacy is viable. They must then commit to accepting no cash donation over $250. (Candidates who eschew voucher funding can take donations up to $500.)

The purpose of the program is to democratize campaign spending without running afoul of the First Amendment. Thanks to Supreme Court decisions like Citizens United and McCutcheon v. Federal Election Commission, affluent citizens and corporations can flood elections with huge sums of cash, leading lawmakers to prioritize their interests over those of ordinary Americans. Reformers hope that democracy vouchers will make politicians more responsive to average voters, since everyone in the electorate is a potential contributor.

So far, the program has been a moderate success, according to a study by the pro-voucher nonprofit Every Voice. In 2017, the first election cycle using the new scheme, 18,000 Seattle residents gave candidates about 70,000 of the $25 vouchers. The number of new donors skyrocketed: 84 percent had not donated to a campaign in the previous two elections, and among the new donors, 71 percent used vouchers. At least 25,000 Seattleites provided donations, about three times more than the 8,200 residents who donated in 2013. Women, young people, people of color, and non-affluent residents were more likely to contribute through vouchers. The only hitch is that an enormous number of voters—96.7 percent—did not use their vouchers, suggesting that the city needs to do a better job educating residents about the program.

If it’s allowed to continue, that is. In June 2017, the libertarian Pacific Legal Foundation filed a lawsuit in state court to block the measure, asserting that it infringes upon the First Amendment. A superior court dismissed the suit in November 2017, but PLF appealed. In an unusual move, the appeals court declined to rule, instead sending the case directly to the Washington Supreme Court, declaring that it presented “a fundamental and urgent issue of broad public import” requiring swift resolution. The justices agreed and took the case, Elster v. City of Seattle; they will hear arguments in the new year.

The Washington Supreme Court’s apparent desire to decide Elster ASAP should be troubling for reformers. As one of the PLF attorneys on the case, Ethan Blevins, has noted, it seems likely that the justices are concerned that the U.S. Supreme Court’s Janus decision could render the vouchers constitutionally suspect. In Janus, the court ruled that states may not compel non-union members in the public sector to help finance collective bargaining. These mandatory dues, Justice Samuel Alito wrote, compel nonmembers “to subsidize private speech on matters of substantial public concern” in violation of the First Amendment.

PLF asserts that Seattle’s Democracy Voucher Program similarly “compels property owners to bankroll speech they do not wish to support.” It adds that the law “disfavors minority viewpoints” by distributing money “at the whim of majoritarian interests.” And, PLF insists, the law discriminates against voters who support candidates who will not or cannot accept voucher funds.

These arguments have a major flaw: In 1976’s Buckley v. Valeo, the U.S. Supreme Court held that public finance systems are constitutional, since they “enlarge public discussion and participation in the electoral process,” “First Amendment values” that are “vital to a self-governing people.” The court permitted a plan that, like Seattle’s, gives more money to candidates with robust grassroots support. Since then, federal courts have upheld comparable city and state laws that provide public financing to candidates who meet a donation threshold independently and agree to certain conditions, like refusing large contributions. No court has ruled that such a scheme “disfavors minority viewpoints.”

That doesn’t mean Seattle is off the hook. In Janus, after all, the Supreme Court overturned a precedent nearly as old as Buckley. And PLF clearly wants to frame Elster as a Janus-like attack on public financing. The group claims that the Democracy Voucher Program compels landlords to subsidize the speech of renters, much like the law in Janus compelled nonmembers to subsidize the speech of unions. A majority of Seattle residents rent their property, yet only landlords must pay the tax that funds the voucher scheme. As a result, PLF writes, “Seattle imposes the burden of funding renters’ political speech—in the form of vouchers—solely on the shoulders of landlords and other property owners.”

There are, however, key distinctions between the Seattle law and the union dues cases. In Janus, nonmembers had to pay money directly to the union; here, the government collects a tax, then lets voters decide how to use the funds. And while the dues in Janus exclusively subsidized union representation, the voucher tax subsidizes a broad array of political speech. The Seattle program does not favor or disfavor any viewpoint; all voters obtain the same number of vouchers, and all candidates are free to compete for them. If the Seattle law is unconstitutional, then so is any public finance scheme that awards money to candidates who’ve demonstrated more popular support. That includes the presidential public finance law, which matches small contributions a candidate receives during the primary and gives more money to major party nominees than third-party candidates.

But this Supreme Court is not afraid to overturn precedent, no matter what Susan Collins thinks. Just days after deciding Janus, the court indicated that it might overturn a unanimous 1990 decision allowing private bar associations that regulate the legal profession to collect dues from lawyers. If the progressive Washington Supreme Court upholds the Democracy Voucher Program, PLF will surely appeal to SCOTUS, where they’ll have better odds. The conservative justices could use Elster to chip away at public financing much as they used Janus to kneecap labor rights, preserving wealthy Americans’ ability to drown out small donors with a torrent of cash.

The First Amendment was meant for better things. Albuquerque, New Mexico, and Austin, Texas, are already planning to implement democracy vouchers via ballot initiative, and reformers have embraced the idea as a response to big money corrupting politics. Voters who use the vouchers seem to like them; one told the Seattle Times, “It feels like I’m more a part of the system. People like me can contribute in ways that we never have before.” The Democracy Voucher Program isn’t about discriminating against landlords. It’s about improving self-governance by helping more Americans participate in elections. If the Supreme Court thinks that’s unconstitutional, it has forgotten why the First Amendment exists in the first place.