Legal Update: Campaign Finance
Tuesday, March 2, 2010
Two San Diego stories top this Legal Update. A judge has ruled on the city of San Diego's strict campaign finance rules. And the San Diego City Council has tweaked the teen curfew ordinance to make it comply with a recent ruling. And then we'll hear about the arguments made before the US Supreme Court regarding a federal law that pits first amendment rights against the war on terrorism.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. The recent U.S. Supreme Court ruling about corporate political donations has apparently trickled down to San Diego. We'll hear how that decision is changing local campaign finance laws. Also on this legal update, the San Diego city council adds just a few words to the teenage curfew law in an attempt to bring it in line with a court ruling. And then more from the U.S. high court, on a case that pits free speech against the war on terror. Joining us to explore these fascinating issues is These Days legal analyst, Dan Eaton. And good morning, Dan.
DAN EATON (Attorney/KPBS Legal Analyst): Good morning, Maureen.
CAVANAUGH: Okay, let’s get right to it…
CAVANAUGH: …because it’s very complicated.
EATON: It is.
CAVANAUGH: In January, the U.S. Supreme Court said it was okay for corporations to spend money for ads in political campaigns as long as they didn’t donate directly to the candidate or coordinate the ads with the candidate. Now that ruling was a landmark because it struck down years of settled campaign finance law. Just a couple of weeks ago, we started feeling the effects of that ruling when part of the City of San Diego’s campaign finance law was declared invalid. So what can you tell us about this ruling?
EATON: Maureen, it is very important and, in fact, according to an electronic database that I consulted, it’s the only ruling so far to examine Citizens United v. FEC in any detail. Judge Irma Gonzalez, who is the chief judge of the local federal court that covers San Diego and Imperial Counties, issued a ruling concerning the City of San Diego ordinance, campaign finance ordinance. And this was a case that was brought by the local Republican Party and the local builders’ organization and several other individuals including a prospective candidate for San Diego City Council, Mr. Thalmeyer (sic). And what the court was considering was whether certain parts, not the entire thing, but certain parts of the City of San Diego’s ordinance were or were not unconstitutional in light of the court’s Citizen United ruling. The court issued a preliminary order, preliminary injunction, blocking the enforcement of certain aspects of the City of San Diego campaign finance ordinance. There were several specific parts that she said probably were going to prove to be unconstitutional when she came down finally to deciding the merits, and in the meantime those could not be enforced. Those included restrictions on candidates for city office spending their own money more than a year before the campaign actually occurred, the limits of $500 on individuals giving to independent expenditure committees, that is to say committees that are not controlled by the candidates themselves, as well as various other parts of the ordinance that limited political parties’ direct contributions to city candidates. The thinking was that that unduly restricted political parties’ ability to participate in city races even though, of course, those city races are nominally, anyway, nonpartisan. That last part of the order, the part concerning political parties’ contributions to city candidates, she suspended or stayed to allow the city council to enact a more reasonable ordinance concerning limitations on what political parties can contribute to city candidates. What she said was unconstitutional and unacceptable was that the city barred political participation—boy, say that three times quickly—in city races altogether.
CAVANAUGH: Well, from your first answer I think we’ve already understood that this is a very complicated…
EATON: It is.
CAVANAUGH: …issue. But why did Judge Gonzalez say that individuals could give unrestricted amounts to committees that are not controlled by candidates?
EATON: Well, here is where she actually did rely on the Citizens United ruling and it obviously has nothing to do with corporations here because we’re talking about individuals. She said that independent expenditure committees—and it’s important that you understand that those are not controlled by any candidate and they are not coordinated with any candidate—what Judge Gonzalez said, relying on the Supreme Court’s recent ruling was that such expenditures, quote, do not give rise to corruption or the appearance of corruption, close quote. The Supreme Court, the judge said, said that the independent expenditures cannot be coordinated with candidates almost by definition and they, therefore, cannot have a corrupting influence. Now corruption here, Maureen, is used in a very narrow sense, as we were talking about off air and that is the corruption that comes with a quid pro quo arrangement between contributor and recipient. And quid pro quo, of course, for those who took their Latin as I did, means this for that, meaning if you give a certain contribution to a candidate directly then you’re expecting some sort of official favor in return. Well, if you’re talking about independent expenditures, Maureen, there is – there’s no ability or expectation that you are going to receive an official favor because you’re not giving it directly to the candidate and, therefore, the anti-corruption rationale drops out of the picture. And that all gets us to why individuals cannot be limited in how much they can give to independent expenditure committees that are not coordinated or controlled by candidates.
CAVANAUGH: Now, did the judge decline to issue a preliminary order blocking any parts of the city law that were challenged?
EATON: She did, actually. She said that at this point in the proceeding—and it’s important that you understand that this was a ruling on a motion for preliminary injunction, which means a preliminary order—so the city had to – the plaintiffs, that is to say the Republican Party and these other folks had to show a virtual certainty or a strong certainty that they were eventually going to win on the merits when the judge considered it later in the case. But specifically what she – she did uphold Section 27.2950 of the Municipal Code that bans contributions from anyone other than a pulse basically. Corporations and…
CAVANAUGH: Corporations, right, yeah.
EATON: …entities. That’s right. She said that that part of the law, 27.2950, was constitutional, did not offend the constitution, at least there was no reasonable certainty that it was – that she would eventually find that it offended the constitution. She held that subsections A and B, which prevent the contribution and the solicitation of such contributions were likely to be upheld as constitutional. But, Maureen, she also took a further step and she said that subsection C, which also bars corporations and entities from making or being solicited for contributions to independent expenditure committees supporting or opposing a candidate for elective office were likely not to be shown to be unconstitutional. The city had shown, according to the judge, at least preliminarily that, quote, the – and I’m quoting Judge Gonzalez’s opinion, quote, the limit furthers an anticorruption interest by preventing individuals from circumventing corruption limits with the use of sham organizations, close quote.
CAVANAUGH: Now when you were on the show earlier this year, shortly after the Supreme Court ruling came down, you suggested that that very subsection of the city’s campaign law, subsection C, might be constitutionally…
EATON: Might be unconst – right, go ahead.
CAVANAUGH: I mean, because of this new ruling by the Supreme Court. So did the – Judge Gonzalez’s ruling surprise you?
EATON: Maureen, it did, and here’s why, because the Supreme Court made it clear, as I said in my earlier answer, that the governmental interest, the only government interest compelling enough to limit corporate political contributions is an interest preventing political corruption or the appearance of corruption, and, again, not just corruption generally but this quid pro quo corruption that occurs when you are giving directly to a candidate. But, again, we are not talking about contributions that are being given directly to a candidate here, we are talking about contributions made to independent expenditure committees over which candidates have no control. But if contributions to independent expenditure committees have no corrupting effect when they’re made by individuals, as Judge Gonzalez held in an earlier part of opinion, it’s not clear why they have a corrupting effect when those same contributions come from corporations or people – individuals without a pulse, so to speak, that is to say these artificial entities. Again, these committees are not controlled by the candidates themselves so even a sham organization, unless, of course, it were one controlled by a candidate, would offend – which would offend, of course, the direct contribution ban, would have no capacity to give something to the contributor in the form of official support in exchange for its donation. Of course, what was left unaffected by Judge Gonzalez was that corporations can spend themselves independent money and so forth, that’s to say they don’t have to contribute it to somewhere else. They can simply write a check and have ads put on themselves. But – And it’s also important to emphasize that this was a preliminary ruling and so Judge Gonzalez’s ruling at this stage only means that those who sued the City did not make a, quote, clear showing, close quote, that they eventually would be entitled to a final order.
CAVANAUGH: So if this Supreme Court ruling is even subject to varying interpretations…
CAVANAUGH: …by different judges and people who are intensely studying it, what is our poor city council supposed to do when it comes to fashioning city campaign finance regulations?
EATON: Well, it’s tough, Maureen, but right now the – Judge Gonzalez’s order characteristically has the benefit of being very, very clear. She is very clear about what she is blocking and what she is not blocking so for right now, though, there are certain aspects of the city campaign ordinance that we discussed about that are not in effect right now and presumably the city council will enact some sort of an amendment to the city campaign finance ordinance, setting some sort of limitation on the amount of contributions parties can directly contribute to candidates. But in the meantime, this ruling and the Citizens United ruling itself is having an effect. For example, the City of Los Angeles’ ethics executive – the executive director of their Ethics Commission has said they’re not going to limit corporations’ donations to independent expenditure committees. They were quoted in a recent San Diego News Service that I see as saying that, the executive director of the Los Angeles Ethics Commission. Now, of course, they’re not bound by Judge Gonzalez’s opinion but Judge Gonzalez’s opinion was the first out of the gate and you can expect, Maureen, that at least in California it is going to be entitled to some great respect as other courts, both in California and around the country, grapple with this landmark Supreme Court ruling in Citizens United.
CAVANAUGH: Wow, we’ll have to see what comes of that. Thank you so much.
EATON: It’s going to be interesting. And even following this case, you know…
EATON: …for the developments in this case before Judge Gonzalez, it’s going to be fascinating to watch.
CAVANAUGH: It’s so complicated. Let’s move on to, I think, a less complicated but kind of interesting aspect here of San Diego curfew law. Last time you were here, we discussed a ruling that declared San Diego’s teenage curfew ordinance was, at least in part, unconstitutional. The Court of Appeals said that while the exemptions in the ordinance allowed the minor to attend certain events, it did not allow the minor to travel to or from those activities between the curfew hours of 10:00 p.m. and 6:00 a.m. unless they were accompanied by an adult. Now what action has the San Diego City Council taken in response to that ruling?
EATON: Maureen, a lot of words about a very few words, isn’t there?
EATON: Okay. What was it, last Monday the city council, that was a week ago Monday, the city council enacted a revised emergency ordinance effective immediately that added language to the city’s curfew ordinance that said that it was not violated if the minor was, quote, going to or returning home from without detour or stop, closed quote, any of the activities the ordinance specifically allows, and makes not subject to the curfew ordinance such as organized school activities, recreational activities supervised by adults or First Amendment activities where they are exercising their First Amendment rights.
CAVANAUGH: And why was the revised ordinance enacted on an emergency basis?
EATON: Well, the thinking was, that Judge – judge, the police chief, Williams (sic) Lansdowne, sent a memo to the city council after the Fourth District Court of Appeal ruled that said, quote, without the ability to conduct curfew enforcement, we may experience a rise in crimes against juveniles during these critical hours, close quote, meaning that once the Fourth District Court of Appeal ruling came down, they stopped enforcing the curfew ordinance altogether. The city council in enacting the revised ordinance, specifically found that having a curfew ordinance in place was, quote, a key tool in crime prevention and enforcement, closed quote, and therefore was, quote, critical to preserving the public health, safety and welfare, closed quote, and that’s not only crimes against juveniles, of course, but crimes by juveniles. And as I mentioned to you in an e-mail, Maureen, of course realize that the most effective curfew ordinance has nothing to do with the city council and that is the curfew ordinance that most parents impose, the consequences of which are far more severe than any city council can possibly conceive so…
EATON: …so that’s a – that’s why they considered it an emergency, in all seriousness, because we are talking about juveniles at risk both who are going to be vulnerable to crime and also the thinking is that it may be harder to stop them from committing crimes.
CAVANAUGH: And the city council, then added the language going to or returning home from without detour or a stop. But are there – could there be any other legal challenges to the revised ordinance or do you think it ends here?
EATON: No, certainly the City Attorney thinks it’s possibly – it is possible that there are going to be further challenges and why. That is because the Court of Appeal went further than simply talking about the exemptions and the importance of having a going to or coming home from – going home or coming from these exempt activities. They also said, and I’m going to quote the language, that the lack of a going home exemption, quote, circumscribes a minor’s ability to attend activities like an evening study group hosted in a fellow student’s home or even a social occasion at that home and limits the minor to attending those events only when the minor is certain the work or festivities will end with enough time to allow the minor’s pre-curfew return home. Thus the ordinance sweeps within its gamut entirely benign or even laudable conduct, closed quote. Why is that significant? Because these activities at private homes or other undefined benign conduct is – are not – those are not part of the current exemptions…
CAVANAUGH: I see.
EATON: …right now.
CAVANAUGH: I see.
EATON: And if those are constitutionally required then there is a problem with the ordinance even as revised because the City Attorney essentially threw up his hands and said how do we craft an ordinance to take into account these activities at private homes or other unclear benign activities…
EATON: …that are not part of the current ordinance. So the thinking is what the City Attorney has asked the State Attorney General to do is to ask the Court of Appeal to revise its opinion to strike this additional language so that there is clarity and it is really limited to the importance of adding it going to or coming – going home or coming from these exempt activities. If the Court of – if the State Attorney General declines to make that request to the Court of Appeal, or the Court of Appeal declines to act in response to such a request, you can expect further challenges going forward.
CAVANAUGH: But if and when – Until that time, if and when we might have a challenge, we have a teenage curfew law in effect.
EATON: Got the teefew (sic) curfew ordinance, kids. From 10:00 p.m. to 6:00 a.m. you gotta stay at home. And, in fact, the county council took action as well…
EATON: …Maureen and they – what they’re trying to do is get all of the unincorporated areas and the cities in the County of San Diego to adopt this 10:00 p.m. to 6:00 a.m. time period because apparently there’s some variation in the times of the curfew. Some, I guess, allow kids to be out until 11:00 p.m.
CAVANAUGH: Let’s go to another Supreme – U.S. Supreme Court issue and this one is very complicated and it strikes to the heart, some think at least, of our First Amendment rights. Last Tuesday, the U.S. Supreme Court heard oral argument in a case that challenges a federal law that prohibits Americans from giving advice to organizations the federal government has identified as engaged in terrorist activities. Tell us about this case.
EATON: Sure. It’s a very interesting law actually and it’s part of the effort, the federal effort, to combat terrorism in the wake of 9/11. The federal law at issue before the court prohibits the knowing provision of, quote, any service, training, expert advice or assistance, close quote, to designated foreign terrorists organizations. Now a group called the Humanitarian Law Project, which is actually headed by a USC clinical professor of – at their school of social work, by the name of Mr. Fertig, has asked the court to say this is too vague. The law is too vague and even if it’s not too vague it poses an unconstitutional restriction on our right to free speech and, therefore, it ought to be struck down. That’s what they said. The HLP apparently was trying to help certain Kurdish groups, which are a minority in Turkey, advocate for peaceful resolution of disputes and lodged human rights complaints before the United Nations. Those activities, they said, were stopped in the wake of this law and they said, look, this law that prohibits us from doing this is unconstitutional both because we don’t know exactly what it is that it prevents, and also because even if we did know it limits our right to free speech. We are not trying to further these groups’ unlawful ends and we are not giving them any money, those things were off the table. We are, however, trying to advocate for their lawful ends and it strikes us, they said, that this is unconstitutional, the law is unconstitutional.
CAVANAUGH: I wonder what the – what is the government arguing in response?
EATON: Well, the government is arguing – is, first, that the law is reasonably clear. People do understand what it means, for example, to give expert advice. In 2004, Congress clarified what it meant by some of these terms and said it is reasonably clear what is meant. And beyond that, on the First Amendment issue, they are saying, look, under a 1968 called O’Brien (sic) – O’Brien v. the United States – the United States v. O’Brien, a 1968 case, the Supreme Court said, look, if what you’re doing is regulating conduct where speech is only a marginal or incidental part of the law and the law is not really aimed at regulating speech, then that’s okay if it furthers an important governmental interest on related – if it furthers an important governmental interest which, of course, the fight on terror is, and if the incidental restriction on alleged First Amendment of freedom is no greater than essential to the furtherance of that objective. Now, the bottom line is that they are saying, look, we have made these changes. The First Amendment – this doesn’t go any further than is necessary to accomplish our aim. So that’s what, essentially, they are saying. Understand though that if the court agrees with them, that this is really more about conduct than about speech, that the government has a much greater likelihood of winning this case. Why? Because as we found – as we saw in the Citizens United political expenditure case, when you’re talking about speech anyway the government has a much harder road in regulating it because the court applies what’s called strict scrutiny. That is, say, the highest level of scrutiny for the government to justify its restrictions. So if they find that it is conduct, more conduct than speech, that we’re talking about the provision of services and so forth, then the government is more likely to prevail. But the attorney for the people who are – the community – the Humanitarian Law group, which is headed, by the way, by a former federal administrative law judge, says, look, even if we’re talking about conduct as opposed to – you know, like conduct incidental to speech, the fact is that we are trying to help them with their – with lawful objectives, so the government’s interest in preventing terrorism is not really furthered by limiting what it is we want to do.
CAVANAUGH: And people try to read the tea leaves when – depending on which justices ask what kinds of questions and I’m wondering what did the court focus on when they were asking questions during oral arguments?
EATON: Well, the court focused on a variety of things. First of all, even Chief Justice Roberts, who is generally considered a conservative, said that he wasn’t entirely sure what, in the oral argument, which I did read, said he wasn’t unsure (sic) of what it meant to have, quote, specialized knowledge or in part specialized knowledge. The solicitor general, in response to that said, well, Chief Justice – Mr. Chief Justice, in fact, retired Judge Fertig, who is the leader of this Humanitarian Law group makes it very clear that he does have specialized knowledge concerning the provision of advocacy training to the U.N. and so forth. So even if there are cases where you can imagine this might be hard to define, this case is not it because it is very clear that there is specialized knowledge, that is that they are trying to do – trying to impart. Another aspect of it, of course, was this whole First Amendment issue and whether we are talking about speech or the centering of speech, which is the point that Justice Ruth Bader Ginsburg brought up or whether we really are talking more about conduct.
CAVANAUGH: There was even a question about harmonica lessons.
EATON: Don’t you love that? I mean, the Supreme Court in oral arguments, of course, often throws out these wonderful hypotheticals to test the limits of a potential ruling because the Supreme Court’s ruling, of course, will apply nationwide and have a broader impact. That’s why they take these cases. The newest justice, Justice Sonia Sotomayor, said, well, wait a minute. If we’re talking about specialized knowledge in training, this would prevent them from, for example, teaching harmonica lessons and the Solicitor General, Elena Kagan, said in response, rather – probably a little too glibly in this context, said, well, there are not too many people trying to teach harmonica lessons to Al Qaeda. But the serious point that the Solicitor General made was that, look, this is – we can sort of cross that bridge when we come to it. We have made it clear that – what it is we are going after, and this kind of conduct that the Humanitarian Law Project wants to engage in, the Solicitor General said, does fall within the law and it is not unconstitutionally vague for that reason.
CAVANAUGH: So when is a decision on this matter expected?
EATON: The Supreme Court will not decide – is expected to decide this case before the end of its term in June. So we can expect it in the next few months but there are a lot of blockbuster decisions in the hopper. In fact, one argued just this morning was the McDonald v. the City of Chicago case which will determine whether the Second Amendment ruling that came down just two years ago, which, of course, held that there was an individual right to keep and bear arms, whether that right extends to regulations by cities and states. And so a lot going on. And then, of course, just yesterday they heard a case involving the criminal appeal of a former head of Enron, Jeff Skilling. This is proving to be a fascinating Supreme Court term and, in the meantime, the California and San Diego courts are continuing to interpret these rulings by both the U.S. Supreme Court and courts closer to home and that’s what makes the evolutional of law so very exciting and why I so enjoy these occasions we have to get together every three weeks, Maureen.
CAVANAUGH: I do enjoy them, too, complicated issues but you…
EATON: They are.
CAVANAUGH: …you really break them down for us. Thank you so much, Dan.
EATON: Well, thank you, Maureen.
CAVANAUGH: I’ve been speaking with These Days legal analyst Dan Eaton. If you’d like to comment, please go online, KPBS.org/thesedays. Coming up, “Stem Cells for Dummies,” that’s as These Days continues here on KPBS.