Retro Bill Fails Constitutional Tests According to Legal Analysis

The Retro Bill being opposed by AGC in Olympia has some serious constitutional problems according to a legal analysis.

Davis Wright Tremaine LLP at the request of AGC and its business coalition partners reviewed legislation ESSB 6035 and constitutional issues raised by it.

A primary motivation behind the legislation as has been widely reported in the media is the desire of some legislators to squelch the political advertising that a single Retro sponsor the BIAW funds with Retro proceeds. The bill would do this by restricting the way all sponsors of Retro programs use refund dollars.

In his analysis presented to Rep. Steve Conway Chair of the House Committee on Commerce and Labor Bruce Johnson of Davis Wright Tremaine says Because members voluntarily join retro groups any attempt to silence their political speech must survive the Constitutions strictest First Amendments tests. We believe ESSB 6035 fails to do this...As noted First Amendment advocate Justice Black observed ‘There is of course no constitutional reason why a union or other private group may not spend its funds for political or ideological causes if its members voluntarily join it and can voluntarily get out of it.

Johnson also raises concerns about the bills potential interference with existing contracts. By restricting sponsors abilities to contract in a variety of ways the law would directly interfere with and change material terms to which the sponsors and members already agreed. These changes for which the bill states no rationale create substantial doubt as to the sections constitutionality if applied to existing contracts.

Despite its doubtful constitutionality the bill was passed out of the House Commerce and Labor Committee after previously being passed by the full Senate. Stephen Seger Safety Director for Fousheé and Associates has worked hard to defeat the bill on behalf of AGC having testified before both House and Senate Committees.  Click TVW to view Segers testimony (scroll to the 1:30.00 mark in the hearing for Segers testimony.)

The bill now heads to the House Rules Committee and then likely to the House floor for a vote. AGC will continue its efforts to defeat it. In addition to direct lobbying these efforts include broader public outreach. Media outlets have published AGCs position on the bill. Most recently the Daily Olympian newspaper published a guest editorial co-written by AGC Executive Vice President David DHondt. That article can be seen here.

For more information about this legislation contact Rick Slunaker 360-352-5000.