04/27/2006: "Two New Views on Gas Tax Lawsuit"

You may have thought the lawsuit filed by San Juan County and prosecutors from two other counties against the No New Gas Tax Committee over campaign finance charges Previous Story was over, but like the guest house issue, it seems to have a long life. The Guardian has received two press releases on the latest twists and turns of the case, and they can be read in their entirety by clicking on the link below:

Wa Supreme Court To Hear New Disclosures In Talk Radio Lawsuit

By Randall K. Gaylord

The Washington Supreme Court will be asked to consider new revelations in the lawsuit about the I-912 campaign's failure to disclose contributions received through KVI radio talk show hosts. It announced last week that it will hear argument June 8, 2006 in the case, San Juan County v. No New Gas Tax Committee.

"The campaign has now admitted it hid the truth about ties to the talk show hosts," said San Juan County Prosecuting Attorney Randall Gaylord. "This shows why the disclosure obtained by the lawsuit was so important." "The people have the right to know who is funding campaigns in our state."

In a brief recently submitted to the Supreme Court, the No New Gas Tax Committee revealed that it misled the trial court about the relationship between the campaign and the talk show hosts. Last year, the treasurer for No New Gas Tax submitted a sworn affidavit to the trial court denying that it had "coordinated with Kirby Wilbur, John Carlson and/or KVI the content of any radio broadcast" or that the hosts had ever been requested to "broadcast or disseminate any information regarding our committee." But, in a recent Supreme Court brief, the No New Gas Tax Committee admitted that "a member of NNGT had previously requested (not directed or controlled) that Carlson mention certain issues regarding the campaign."

The Supreme Court will also hear that KVI took a position before the state's Public Disclosure Commission several years ago that is directly opposite to the Campaign's assertion in the current lawsuit that air time is not a reportable contribution. In a matter involving another KVI talk show host, Fisher's attorneys argued in 1995 that state public disclosure laws should classify as a reportable contribution on-air fundraising by a talk show host for his own campaign. Fisher stated that the PDC's opinion requiring disclosure of on air fundraising "represents an appropriate resolution," "strikes a reasonable balance between important public policies," and "provides a relatively clear rule that is easily applicable by broadcasters."

Gaylord and city attorneys for Seattle, Auburn and Kent filed the lawsuit against No New Gas Tax Committee last year for failing to disclose the source of $70,000 in cash contributions, as well as in-kind contributions of air time on Seattle radio station KVI that were used to solicit financial contributions. The KVI hosts--who stated publicly that they had formed the campaign--regularly and repeatedly used their air time to ask listeners to make contributions to the campaign.

After hearing the arguments in the case, Thurston County Judge Christopher Wickham ruled that the No New Gas Tax Committee had failed to disclose those contributions as required by state law.

Judge Wickham also rejected claims by the No New Gas Tax Committee that its free speech and other rights were violated by requiring it to disclose the contributions. Judge Wickham ruled that the KVI talk show hosts "were principals in the campaign" and that "they intentionally promoted the campaign by advertising it in their regular show time slots." The Court found that "the on-air advertising was in addition to and different from any editorializing, comment, or discussion by the hosts on their shows."

"The trial court, PDC and even Fisher Broadcasting all agree that talk show hosts are not above campaign disclosure law," said Mike Vaska, an attorney at Foster Pepper representing the local prosecutors. "Talk show hosts are accountable just like everyone else to disclose the source of campaign funding and other valuable in-kind contributions," he said.

According to PDC reports, the No New Gas Tax committee raised approximately $200,000 in cash contributions in May 2005, its first month of campaigning. After it was required to do so by the trial court, the Campaign reported the value of the KVI air time used by the talk show hosts to solicit these funds at $20,000.

Initiative 912 sought to repeal the 9.5 cent gas tax approved by the Washington State Legislature in 2005. It was rejected by Washington voters with a 54.6 percent "no" vote in November 2005.
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No New Gas Tax Committee response:

Gaylord Distorts The Proceedings Of The Court

If a reporter or media commentator is pitched a story and chooses to write about that issue, do they instantly become "an agent" of the person, company or campaign that pitched them?

Of course not.

But San Juan County Prosecuting Attorney Randall Gaylord thinks otherwise:

The San Juan Prosecutor made the astonishing claim in a brief filed with the Washington Supreme Court on April 21, in the case San Juan County v. No New Gas Tax�the case challenging the prosecutor's misuse of Washington's campaign finance laws. The prosecutor claimed, "at least one of the KVI hosts was an agent of the Campaign when he was asked to �mention certain issues' on his talk radio program." In this light, the prosecutor asked the Supreme Court to treat the hosts' commentary as reportable "contributions" to the campaign, subject to state regulation.

Bill Maurer, the executive director of the Institute for Justice Washington Chapter, which is representing the campaign in its challenge, said, "What's really disturbing here is that the prosecutor claims that every time a member of the media is pitched to cover an issue of public importance, if that reporter or commentator does their job�if he or she reports on the issue or comments on it�they have magically become a member of that campaign. That flies in the face of a free press and free public discourse. It is yet another means the government is using to try to intimidate the media into silence."

Maurer continued, "This case is not about whether members of a campaign sometimes ask members of the press to report on particular issues. Campaigns often have contacts like this with reporters and journalists. The case is about whether the government can monitor these contacts and harass campaigns and members of the press when it does not like what is said."

Michael Bindas, staff attorney for IJ-WA, added, "By claiming that a talk show host's commentary becomes �political advertising' subject to regulation under campaign finance laws, the prosecutor has clearly demonstrated what this case has been about from the beginning�attempting to quarantine campaigns that the government doesn't like from being able to get press coverage or favorable commentary. If the media has to worry that responding to a campaign's suggestions for news stories will strip them of their First Amendment freedoms, there will be a terrible disincentive for the media to cover issues that campaigns are trying to raise in public discourse. It creates a chilling effect and makes the government, not the media, the ultimate determinant of the editorial content of coverage."

Maurer said, "Quite simply, the prosecutor here is trying to create an unconstitutional firewall between the press and campaigns that aren't toeing the government line. Campaigns have just as much right to speak with the press�to urge them to cover stories and suggest issues that will educate the public�as anyone else, and the media should be able to cover these issues without fear of harassment."

The government revealed its extreme position in a brief designed to vilify the Yes912.com campaign for simply acknowledging that a member of the campaign had asked a KVI host to discuss issues regarding the campaign. "In the campaign's last briefing with the court, the campaign pointed out that, contrary to a mistaken claim made in an affidavit filed at the very beginning of the case a member of the campaign staff had asked radio talk show host John Carlson to discuss issues regarding the campaign. The government claims that by being honest with the court, that was somehow dishonest," Maurer said.

Bindas asked, "What members of the media don't get calls from campaigns looking for coverage? They all do. But just because they find the information in the pitch newsworthy doesn't make them a part of a campaign or a company; it just makes them a reporter or commentator who is trying to do their job and advise the public on issues of public importance. The government's position here is truly breathtaking. It writes freedom of the press out of the Constitution."

"This case is, and has always been, about the government's misuse of campaign finance laws to harass and try to silence voices and campaigns with which they disagree," Maurer said. "It is one of the most important free speech and free press cases in years, which is why the Washington Supreme Court took the unusual step of accepting review directly from the trial court, bypassing the Court of Appeals."

Maurer concluded, "The First Amendment does not allow the government to monitor media broadcasts, make determinations of when commentary is not sufficiently in sync with the government's view, and use campaign finance laws to try to dictate the editorial content of public issues. The First Amendment fully protects the right of the media to say what they will about an issue, even if the government does not like what they say."