Political Analysis: San Diego’s Campaign Fundraising Laws Challenged In Court
Wednesday, January 13, 2010
The city of San Diego's campaign finance regulations now face a legal challenge. KPBS political correspondent Gloria Penner is here to discuss who filed a lawsuit against the rules and why.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. San Diego has its own campaign finance legal battle brewing. A lawsuit which seeks to overturn a number of the city's rules and regulations regarding fundraising for city council candidates has been filed in federal court, and the timing of the lawsuit is probably no coincidence. Four of the eight San Diego City Council seats are up for election on this November's ballot.
Joining us to explain what the lawsuit is about is KPBS Political correspondent Gloria Penner. Welcome, Gloria.
GLORIA PENNER (KPBS Political Correspondent): Good morning, Maureen.
CAVANAUGH: Give us an overview, if you would, of San Diego’s campaign finance rules regarding the donations to people running for city council. First, are there restrictions on the amount individuals can donate?
PENNER: Absolutely, and it’s very clear. Candidates for elective city office may accept contributions up to $500 per contributor per election. In other words, a contributor to a candidate running for city council may give that candidate no more than $500 for the primary election and no more than $500 for the general election. And, by the way, the city’s contribution limits don’t apply to a candidate’s personal funds. A candidate may contribute unlimited funds to his or her committee. And remember that these funds have to belong to the candidate in his or her sole individual capacity. The candidate may not receive unlimited funds, let’s say, from a spouse or a relative. It’s got to belong to the candidate.
CAVANAUGH: How about political organizations? Can they directly support a candidate with contributions?
PENNER: Well, candidates for elective city office may only accept contributions from individuals. They may not accept contributions from any type of organization such as a corporation, a company, a partnership, a joint venture, a firm, an association, a proprietorship, a committee, and on and on and on.
CAVANAUGH: But what can an organization – how can they contribute to the campaign of a city council – somebody running for city council?
PENNER: Well, what they can do is they can accept up to $500 from an individual, and the campaign, the committee or what have you, can use that money, for example, for a flyer, a direct mail piece, for a television ad, for radio, but – a radio announcement, but they can’t commingle that money with the money of the candidate. So, for example, suppose a candidate says I really want to buy this ad in a newspaper and it costs $1,000 and I have $500 to buy it with. The committee cannot then add $500 to that $500 to buy a $1000 ad.
CAVANAUGH: It’s got to be separate. Are there time restrictions on how early candidates can begin receiving donations for their San Diego City Council run?
PENNER: Yes. I spoke to Stacey Fulhorst. She’s the executive director of the Ethics Commission for the City of San Diego, and this is a commission that reviews election laws, makes recommendations. And she tells me that there’s a pre-election blackout period, so a candidate cannot start raising money until 12 months before the primary. And this was recommended because if you have that time limit, a newly elected official, let’s say somebody who is just elected and they go into office, well, they could start raising money for their reelection campaign from day one, and the focus should be on city business and not focused on fundraising. And so you have that kind of a time limit. You can’t start, you can’t use your money until 12 months before the election.
CAVANAUGH: So does the San Diego City Ethics Committee come up with these rules and regulations? Where do these campaign fundraising restrictions come from?
PENNER: Well, as I said, the Ethics Commission reviews and makes the recommendations but it’s the council, the city council, that makes them into law. The candidates for elective office—and this is kind of important—and the campaign committees that support or oppose them, they’re subject to both state and local finance laws. The Ethics Commission has jurisdiction over local campaign finance laws and these include what we were talking about, the campaign contribution limits and also disclosures that are not found in state law. In fact, Maureen, city law regarding campaign contributions is much more restrictive than state law.
CAVANAUGH: So what are – As we say, we’re talking about this lawsuit that’s been filed in federal court seeking to overturn a number of the city’s rules and regulations about campaign finances. And what are the arguments that the restrictions should be loosened?
PENNER: Well, they’re kind of interesting arguments. First of all, let me tell you who it is who’s doing the challenging. I think that’s kind of fascinating. It’s a coalition of plaintiffs and they consist of the County Republican Party, pollster John Nienstedt. We’ve had John on the air several times and he frequently runs – works for Republicans. We have the Lincoln Club, which is a pro business group with very strong Republican ties. Then there’s the local chapter of the Associated Builders and Contractors. This is a political action group and it’s another Republican organization. And then former candidate Phil Thalheimer. He ran for city council last time around in the 1st District, which represents the La Jolla area and he is a Republican. He ran against Sherri Lightner. Sherri Lightner won. So that’s the group. And they are arguing that the regulations are so restrictive that they violate the First Amendment.
CAVANAUGH: Oh, really?
CAVANAUGH: How so?
PENNER: Well, Thalheimer wants to be able to spend his own money. He did last time. But he wants to announce his campaign for a seat that’s up for election, that’s the same seat he ran for two years ago, and that would be then coming up in 2012. He wants to announce it early, like now. He wants to send out a mailer saying, you know, hang in there, I am going to run again in 2012. Well, our campaign laws do not allow that. You can start 12 months before but you can’t start three – two or three years before.
CAVANAUGH: Accepting donations for that run, right.
PENNER: Well, even contributing to his own…
PENNER: …that’s what he would be doing.
PENNER: In other words, he would contribute to his own campaign committee and then they would spend the money out of that. He can’t do that.
PENNER: The Lincoln Club wants no limit on what it can spend in behalf of a candidate. Now, it’s $500 per candidate. John Nienstadt wants to give more than $500, which is the current limit. And the Republican Party wants to contribute to the candidates’ campaigns directly. None of that is allowed, and that’s what they want.
CAVANAUGH: Well, as you’ve delineated it, it’s the individuals bringing the challenge are connected to the Republican Party, so let’s talk about the politics of this lawsuit. Why would Republicans want the fundraising rules overturned?
PENNER: Well, as you had said four of the eight city council seats are up for election this year. And let me just give you a little bit of background. Donna Frye is a Democrat; she’s termed out. That district is up for grabs. Ben Hueso is running for the Assembly even though he is – he could run for reelection. There are no incumbents in those two races. When you don’t have an incumbent in a race, it really can be a free for all. Almost anybody can get in there, a Republican or a Democrat. Although Hueso’s district is traditionally a Democratic district. It is possible that the Republicans would have a chance to win those seats if they can spend enough money. The other two candidates who are up for reelection are – who are – yeah. No, there are two candidates up for reelection, Kevin Faulconer and Tony Young. And, you know, those seats look pretty safe at this point. Jess Durfee’s the chair of the San Diego Democratic Party, says the campaign contributions create a level playing field for candidates. He’s saying—remember, he’s a Democrat—that the Republicans are proposing to allow a few rich people in San Diego to start bankrolling their ideal candidate. So he’s saying that this is a way of buying elections. And, you know, I’m looking at Massachusetts. Massachusetts’ race for U.S. Senate to replace Ted Kennedy is getting absolutely ferocious. It really looked as though the Democrat State Attorney General Martha Coakley had it all sewed up and then along comes a Republican candidate, State Senator Scott Brown and as of this last week, they’re neck and neck, and you ought to see what’s happening with the fundraising. In just one day, the day the two of them debated, $4.1 million—well, that was picked up over a period of a few weeks by Coakley—but she raised $2 million in the first four weeks of her campaign. And the day of the debate, Brown, who is a Republican, raised $1.3 million. So the money is just rolling in now because that’s a neck and neck race and you can be sure that campaign contributions are going to make a big difference there.
CAVANAUGH: Just to show you how – the importance of these campaign finance laws. Now I know there was recently a court case up in Los Angeles challenging that city’s campaign finance laws. What happened to that?
PENNER: Well, the lawsuit that was challenging that actually was denied, was overturned, and it was in federal court. But even so, lawyers for the plaintiffs here in San Diego seem to think they have a pretty good chance. I was looking at the resume of the Indiana lawyer, James Bopp, who is General Counsel for an organization that actually challenges campaign finance rules across the country. What a resume. Wow. It’s 38 pages long, it’s really impressive. He’s very active in high level Republican politics. He even was deputy attorney general in Indiana for awhile. It’s full of speeches and publications, television and radio appearances, court cases. He likes to talk about conservative subjects such as the right to life, and he’s filed several lawsuits on behalf of the Republicans and he says he’s already filed several campaign finance suits all the way to the Supreme Court.
PENNER: And he says he won. This is what he says about himself. Of the 100 campaign finance cases I’ve handled, we won two-thirds in the district courts, 90% in the courts of appeal, and 80% of the cases I’ve argued in the U.S. Supreme Court. So it sounds like he’s a good choice to be their counsel.
CAVANAUGH: And since none of the San Diego City Council members, since they have approved these ethics requirements that are being challenged, I suppose no one has come out and supported this lawsuit.
PENNER: You mean supporting against the lawsuit or what?
CAVANAUGH: No, supporting the lawsuit for – to overturn these campaign finance laws.
PENNER: Oh. Well, I haven’t followed that so I don’t really know. But what I do know is that there’s going to be a Supreme Court ruling coming up. You mentioned it earlier, whether to free corporations and unions and other interest groups from many restrictions, and it’s expected soon, and what it could signal is a loosening of the rules to where they were before Watergate. The rules got tighter after Watergate and there are many legal experts that expect the court to eliminate the remaining restrictions on ads, let’s say, for or against candidates paid for by these corporations, unions or even advocacy groups. So we may see a whole turnaround in campaign finance reform.
CAVANAUGH: Just in time for the 2010 elections.
CAVANAUGH: When is a ruling expected on our case here in San Diego?
PENNER: We haven’t heard yet when that ruling is but it really – it’s an injunction. An injunction could be decided quite soon, meaning that it would hold off allowing campaign rules as they now stand to apply, and then it would probably have to go back to court.
CAVANAUGH: Well, thank you so much, Gloria.
PENNER: You’re welcome.
CAVANAUGH: Interesting, as always.
PENNER: Thank you so much, Maureen.
CAVANAUGH: Gloria Penner is KPBS political correspondent and host of Editors Roundtable and San Diego Week. You’re listening to These Days on KPBS, and stay with us as we talk about the Afghanistan surge. That’s coming up as These Days continues here on KPBS.
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