An association of food and drink makers will continue to fight a record $18 million fine levied against it for concealing the names of companies that spent heavily in 2013 to defeat a GMO-labeling initiative in Washington.
A Consumer Brands Association spokeswoman said Wednesday the group plans to appeal its latest setback to the state Supreme Court. If that fails, the association may go to the U.S. Supreme Court, she said.
"The ruling is clearly disproportional to other campaign finance violations of its kind, and we will continue to exhaust a series of legal options," the spokeswoman said in an email.
The Washington Court of Appeals Division II on Tuesday rejected that association's claim that the penalty violated the Eighth Amendment's prohibition against excessive fines.
The unanimous three-judge panel said the penalty was warranted because voters were unable to follow who was spending to defeat an initiative that would have required GMO ingredients to be listed on the labels of some foods.
"These violations were serious and significant, and represented an intentional attempt to conceal the identity of companies donating millions of dollars in a contentious ballot campaign," Judge Bradley Maxa wrote. Judges Linda Lee and Lisa Worswick concurred in the opinion.
Then known as the Grocery Manufacturers Association, the group contributed about $11 million on the "no" campaign. The association reported itself as the donor, seeking to shield companies from boycotts by GMO activists.
Under scrutiny by state officials, the association identified the companies three weeks before the election.
A Thurston County Superior Court judge in 2016 ruled the association intentionally broke state reporting requirements and set the record fine. The previous U.S. record penalty for campaign finance violations was $3.8 million, levied by the Federal Elections Commission in 2006 against the Federal Home Loan Mortgage Corp.
Tuesday's decision affirmed that Washington courts take seriously intentional campaign finance violations, Attorney General Bob Ferguson said.
"Dark money has no place in Washington elections," he said in a statement.
The state Supreme Court already has upheld the association's conviction. It also ruled the violations were intentional, which tripled a $6 million base fine to $18 million. The high court, however, has not considered whether the fine was unconstitutionally excessive.
At a hearing in September in the Court of Appeals, the food makers' attorney, Robert Mitchell Jr., said that at most the association should have been fined $622,820, based on the number of late and missing reports.
He said the economic motive of the Grocery Manufacturers Association was clear to voters, even without identifying individual companies. There was no evidence that withholding the names during the campaign influenced the outcome, he said.
Mitchell also accused the state of "viewpoint discrimination," saying food makers were punished more harshly than Food Democracy Action, which supported the initiative and was fined $319,281 for not reporting donors, who contributed $295,000.
"The unavoidable conclusion here is that GMA was punished in proportion to the amount of its political speech, not in proportion to any harm caused," Mitchell said.
"Punishing speakers more severely for speaking more is antithetical to the values that underlie the First Amendment," he said.
The GMO-labeling initiative was voted down 51% to 49%.