voters approved the "Democracy Voucher Program,"
intending to increase civic engagement. Under this program,
the city provides vouchers to registered municipal voters and
qualifying residents. Recipients can give their vouchers to
qualified municipal candidates, who then may redeem them for
campaign purposes. The city funds the program from property
taxes. Mark Elster and Sarah Pynchon sued in King County
Superior Court, arguing the taxes funding the program burden
First Amendment rights and unconstitutionally compel speech.
U.S. Const, amend. I. The superior court dismissed the suit.
Because the program does not violate the First Amendment, we
2015, Seattle voters approved Initiative 122, establishing
the Democracy Voucher Program. According to the initiative,
the program's purposes are (1) to "expand the pool
of candidates for city offices and to safeguard the
people's control of the elections process," (2) to
"ensure the people of Seattle have equal opportunity to
participate in political campaigns and be heard by
candidates," and (3) to "prevent corruption."
Clerk's Papers at 14, 16.
Democracy Voucher Program attempts to further these goals by
providing vouchers to eligible municipal residents for use in
city elections.Voter registration in Seattle makes one
automatically eligible to receive vouchers; municipal
residents who can donate to a political campaign under
federal law can also receive vouchers. A voter-approved,
10-year property tax funds the program, collecting in 2016
"approximately $0.0194/$ 1000 assessed value" in
additional property taxes. Id. at 57. The voucher
recipients can give their vouchers to qualified municipal
and Pynchon own property in Seattle. They brought a 42 U.S.C
§ 1983 action challenging the constitutionality of the
Democracy Voucher Program, arguing it is unconstitutional to
use tax dollars to underwrite campaign contributions.
of answering Elster and Pynchon's complaint, the city
moved to dismiss. The superior court granted the city's
motion, upholding the Democracy Voucher Program. It found
that the city "articulated a reasonable
justification" for the program that was consistent with
United States Supreme Court precedent: "an increase in
voter participation in the electoral process."
Id. at 115. Elster and Pynchon appealed, and the
Court of Appeals certified the case to us.
and Pynchon challenge the city's use of tax revenue to
fund political speech. "[T]he central purpose of the
[First Amendment is] to assure a society in which
'uninhibited, robust, and wide-open' public debate
concerning matters of public interest would thrive, for only
in such a society can a healthy representative democracy
flourish." Buckley v. Valeo, 424 U.S. 1, 93
n.127, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (quotingN.Y.
Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964)).
Democracy Voucher Program does not burden fundamental rights,
the program enjoys the presumption of constitutionality and
the challengers bear the heavy burden of showing the city
lacked the power to impose the tax under rational basis
scrutiny. See Forbes v. City of Seattle, 113 Wn.2d
929, 941, 785 P.2d 431 (1990) (upholding theater ticket
admission tax against First Amendment and equal protection
challenges (citing Fin. Pac. Leasing, Inc. v. City of
Tacoma, 113 Wn.2d 143, 147, 776 P.2d 136 (1989))). The
power to tax is a fundamental, necessary sovereign power of
government. Love v. King County, 181 Wash. 462, 467,
44 P.2d 175 (1935). "The government, as a general rule,
may support valid programs and policies by taxes or other
exactions binding on protesting parties." Bd. of
Regents v. Southworth, 529 U.S. 217, 229, 120 S.Ct.
1346, 146 L.Ed.2d 193 (2000). If rational basis scrutiny
applies, the program's tax need only rationally relate to
a legitimate government interest. See Dot Foods, Inc. v.
Dep't of Revenue, 185 Wn.2d 239, 249, 372 P.3d 747
and Pynchon ask us to apply strict scrutiny, alleging the
Democracy Voucher Program burdens fundamental rights. If the
program burdens fundamental rights, strict scrutiny applies;
to survive strict scrutiny, the city needs to show the
program furthers a compelling interest and is narrowly
tailored to achieve that interest. Citizens United v.
Fed. Election Comm'n, 558 U.S. 310, 340, 130 S.Ct.
876, 175 L.Ed.2d 753 (2010) ("Premised on mistrust of
governmental power, the First Amendment stands against
attempts to disfavor certain subjects or viewpoints.");
see also Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700
(1995) (viewpoint neutrality requires the government to
"abstain from regulating speech when the specific
motivating ideology or the opinion or perspective of the
speaker is the rationale for the restriction"). As will
be discussed below in the context of Elster and Pynchon's
substantive arguments, heightened scrutiny does not apply.
Accordingly, we apply rational basis review.
and Pynchon assert the Democracy Voucher Program, through
its tax, unconstitutionally compels them to support the
program's message. Neither this court nor the United
States Supreme Court has squarely addressed the issue before
us: whether a tax used to fund a public financing system
violates First Amendment rights. Elster and Pynchon do not
assert a violation of the state constitution. Most related
cases have addressed challenges to the public financing
systems themselves, not the potential injury to the taxpayers
funding those systems. See, e.g., Buckley, 424 U.S.
At 92-93; Ariz. Free Enter. Club's Freedom Club PAC
v. Bennett, 564 U.S. 721, 755, 131 S.Ct. 2806, 180
L.Ed.2d 664 (2011).
Buckley, the Court upheld the public financing of
elections, in the context of a system where taxpayers elect
to authorize payment from their taxes to the Presidential
Election Campaign Fund. The Court held public financing of
elections "is a congressional effort, not to abridge,
restrict, or censor speech, but rather to use public money to
facilitate and enlarge public discussion and participation in
the electoral process, goals vital to a self-governing
people." 424 U.S. at 92-93. The Court concluded that the
public financing system was constitutional despite the fact
it amounted to the disbursement of tax revenue to ...