The following is a summary of the “primary purpose test” as it relates to “political committees” under Washington State law.[1]

RCW 42.17A.005(37) defines "political committee" as “any person (except a candidate or an individual dealing with his or her own funds or property) having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot proposition.”

After Initiative 276 passed, the question arose as to whether corporations or similar associations or organizations may also constitute a “political committee.” Specifically, the question involved entities engaging in some or limited activities related to an election campaign for a candidate or ballot measure, and some or greater activities not related to a campaign and implicated what level of financial disclosure by these entities was required to be made in filings with the Public Disclosure Commission, as disclosures are required of “political committees.” A formal Attorney General’s Opinion (AGO) and two court cases decided after I-276 passed used a “primary purpose” analysis to assist in applying the statutory definition of political committee in the potential filing and disclosure requirements.  Each is discussed below.

AGO 1973, June 8, 1973, No. 14

[The AGO reviewed the definition of “political committee.” The question was, “If a corporation or similar association or organization makes a contribution to a political committee or candidate, does it thereby itself become a political committee as defined in RCW 42.17.020 (22)”[former location of statutory definition]? Following analysis of the initiative’s language in several. sections and its purpose, and case law, the AGO answered, “We therefore conclude that expenditures made by a corporation or other organization in the form of contributions to political committees or candidates do not make that organization a political committee; and for this reason we answer this question in the negative.” The AGO provided in part the following analysis, and used the phrase “primary purpose.” Quotes are excerpted here, emphasis added, and page numbers noted]:

  • In the first place it will be seen that if such a corporation or organization as you have described were itself considered to be a political committee, it would have to do several things which bear no relation to the purposes of the initiative. For example, it would have to indicate what distribution of surplus funds will be made in the event of its dissolution (see, RCW 42.17.040 (2) (h); it would have to appoint a campaign treasurer and depository to hold its money (RCW 42.17.050); all monetary contributions received by it would have to be placed in a special bank account designated the "campaign fund of " (RCW 42.17.060 (1));20/ all deposits made by the corporation or other organization would have to be accompanied by a statement naming the person contributing the funds deposited (RCW 42.17.060 (2); and it would have to file detailed reports of contributions and expenditures (RCW 42.17.080 and 42.17.090.) (Pages 25-26)

In short, if such a technical construction were to be given the statute, it would require that any corporation or other organization which made a political contribution would thereby have to disclose all of its financial dealings and internal accounts, and comply with an overall statutory scheme which clearly was only meant to affect those organizations whose primary purpose is to attempt to influence elections. All this would contravene the well established rule of statutory construction that absurd constructions are to be avoided whenever possible. Accord, AGO 1973 No. 5 [[to Wayne Ehlers, State Representative on February 5, 1973]],supra; see, also, In re Horse Heaven Irrigation District, 11 Wn.2d 218, 118 P.2d 972 (1941); and Discargar v. Seattle, 25 Wn.2d 306, 171 P.2d 205 (1946). (Pages 25-26)

State v. Evans, 86 Wn.2d 503, 546 P.2d 75 (1976)

[The question considered by the State Supreme Court was whether a committee bearing the governor’s name that made a single contribution to the fund of the state Republican Central Committee became a political committee within the meaning of RCW 42.17. The Court held that in the absence of showing that such committee made expenditures for the purpose of supporting or opposing a specific candidate or ballot proposition, or contribution of similar nature, and in the absence of evidence that the committee solicited, received, or had the expectation of receiving contributions to be used in support of or opposition to candidates or ballot propositions, such a committee was not a political committee and not subject to the disclosure requirements of RCW 42.17. Quote – emphasis added, and page number noted:]

  • Where the surrounding facts and circumstances indicate that The primary or one of the primary purposes of the person making the contribution is to affect, directly or indirectly, governmental decision-making by supporting or opposing candidates or ballot propositions, then that person becomes a 'political committee' and is subject to the Act's disclosure requirements. See A.G.O. 1973, June 8, 1973, No. 14, at 25--26. The Primary purpose of the Dan Evans Committee was not to influence the political process by supporting or opposing candidates or ballot propositions through expenditures of its funds, but to pay for miscellaneous expenses incurred by Governor Evans and his staff in connection with his position as a public official. Plaintiff's contention to the contrary creates no material issue of fact. (Page 509)

Evergreen Freedom Foundation v. Washington Education Association, 111 Wn. App. 586, 49 P.3d 894 (2002), review denied 148 Wn.2d 1020, 66 P.3d 639 (2003)

[Plaintiff filed a citizens’ lawsuit against a teachers’ union, alleging, among other claims, that the union was a political committee. The Court of Appeals, citing to the Evans test, held that the WEA was not a political committee under either the “maker of expenditures” or “receiver of contributions” prongs. Quotes – emphasis added, and page numbers noted:]

The Act sets forth two alternative prongs under which an individual or organization may become a political committee and subject to the Act's reporting requirements. "'Political committee' means any person ... having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot proposition." RCW 42.17A.005(37). Thus, a person or organization may become a political committee by either (1) expecting to receive or receiving contributions, or (2) expecting to make or making expenditures to further electoral political goals.  [Footnote: We use the phrases "electoral political goals" and "electoral political activity" to convey the statutory language "support of, or opposition to, any candidate or any ballot proposition" from RCW 42.17.020(33).] (Page 598)

In the only Washington Supreme Court case to interpret the statutory definition of "political committee," the Court added a new requirement to the "making of expenditures" prong. State v. Dan J. Evans Campaign Comm., 86 Wash.2d 503, 509, 546 P.2d 75 (1976). The organization making expenditures must have as its "primary or one of the primary purposes ... to affect, directly or indirectly, governmental decision making by supporting or opposing candidates or ballot propositions...." Evans, 86 Wash.2d at 509, 546 P.2d 75 (emphasis omitted). (Pages 598-599)

The trial court here adopted the broad standard "one of the primary purposes" and applied it in formulating its own rule: An organization is a political committee if one of its primary purposes is to affect governmental decision making by supporting or opposing candidates or ballot propositions, and it makes or expects to make contributions in support of or in opposition to a candidate or ballot measure. We begin our analysis by noting that the trial court correctly formulated this rule. First, as the only mandatory authority on this issue, Evans controls interpretations of the "maker of expenditures" prong. Second, the declaration of policy at the beginning of the Act states that its provisions are to be liberally construed "to promote complete disclosure of ... political campaigns...." RCW 42.17.010(11). (Page 599)

EFF challenges the trial court's method for determining whether electoral political activity is one of WEA’s primary purposes. Specifically, EFF argues that the trial court's means/ends analysis is faulty because it ignores that all "political" organizations are able to articulate goals that do not identify immediate political objectives. To give guidance to the courts in this case of first impression, we hold that an appropriate framework for determining whether electoral political activity is one of an organization's primary purposes should include an examination of the stated goals and mission of the organization and whether electoral political activity was a primary means of achieving the stated goals and mission during the period in question. (Page 599)

Under this analysis, a nonexclusive list of analytical tools a court may use when evaluating the evidence includes: (1) the content of the stated goals and mission of the organization; (2) whether the organization's actions further its stated goals and mission; (3) whether the stated goals and mission of the organization would be substantially achieved by a favorable outcome in an upcoming election; and (4) whether the organization uses means other than electoral political activity to achieve its stated goals and mission. (Page 600)

This analysis avoids the means/end formula against which EFF argues. For example, if the organization has merely restated its primary political purpose in broad nonpolitical terms, the organization's purpose will likely be achieved in an upcoming election. But if electoral political activity is merely one means the organization uses to achieve its legitimate broad nonpolitical goals, electoral political activity cannot be said to be one of the organization's primary purposes. (Page 600)

But this analysis should not be applied as a formula. These are analytical tools meant to guide the court's determination of the equitable issues presented. They are intended to reach all relevant evidence, but they are not exclusive. For example, by examining the totality of the circumstances, a fact finder may look at all of the organization's actions, including those in addition to its stated goals. If the activities of an organization reveal that a majority of its efforts are put toward electoral political activity, the fact finder may disregard the organization's stated goals to the contrary. (Page 600)

 

If, after making these considerations, the fact finder determines that, on the whole, the evidence indicates that one of the organization's primary purposes was electoral political activity during the period in question, and the organization received political contributions as defined in the Act, then the organization was a political committee for that period and should comply with the appropriate disclosure requirements. (Page 600)

 


[1]  Readers are advised that Interpretation 07-02 does not seek to be an exhaustive analysis of relevant court decisions, but rather represents a distillation of some of the key points of the opinions. The Commission could, in an advisory or enforcement setting, rely on portions of the decisions not cited in this Interpretation or on other relevant case law.


Cite as PDC Interpretation No. 07-02

Approved: May 2, 2007

References:  RCW 42.17A.005(37)  [formerly RCW 42.17.020(33)

See also:  AGO 1973 No. 14; Evergreen Freedom Foundation v. Washington Education Assn., 111 Wn. App. 386, 49 P.3rd 894 (2002); State v. Evans, 86 Wn.2d 503, 546 P.2d 75 (1976)