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Home My WebLink About02-04-2014 B2 - JenkinsSTEW JENKINS ATTORNEY 1336 Morro Street, San Luis Obispo CA 93401 Phone: (805) 541-5763 FAX: (805) 547-1608 February 4, 2014 Anthony Mejia, City Clerk 990 Palm Street San Luis Obispo, CA 93401 Atten: Mayor Jan Marx, and Council Members John Ashbaugh, Dan Carpenter, Kathy Smith, Carlyn Christianson Re: SLO City Municipal Code, Chapter 2.40, ELECTION CAMPAIGN REGULATIONS; Council Agenda Item B2. Dear Mr. Mejia: I hope that you will pass this note on to the members of the City Council as they consider campaign finance ordinances now in place, and any consider replacement ordinances. This letter objects to readoption of Chapter 2.40 as presently written, or as recommended with minor amendments by the staff report at tonight's city council meeting. It recommends, instead, that the City explore drafting a voluntary public financing ordinance in order to assure the integrity of elections while protecting citizen's rights to free speech and political active participation in City elections. Chapter 2.40 of the Municipal Code is scheduled to sunset. The terms of the current City campaign finance ordinances are strikingly similar to a Vermont statute held to be unconstitutional in 2006 as violative of individual rights of free speech and free assembly. Those speech and assembly rights are amplified by stronger provisions in Article I, Sections 1-3 of the California Constitution. Specifically the case of Randall v. Sorrell (2006) 126 S.Ct. 2479 held that restriction of donors to contributing no more than $200 to the campaign of a candidate for state representative (tantamount to California's state assembly) so impaired these important inalienable rights that they had to be struck down. Before concluding that there is a distinction between a Vermont state representative campaign and that of a San Luis Obispo City council or mayoralty campaign it would be wise to look at the population of state representative districts and compare them to the number of residents represented by a SLO council member or mayor. According to the 2010 census and publically available information from Vermont that state's "state representative" districts contained barely over 40,000 residents. Each council member and the mayor of San Luis Obispo represent over 45,000 residents. It is clear from a reading of Randall v. Sorrell that when a campaign regulation restricts contributions to such a constrictive level, there is an unjustified impairment of www.stewjenkins.com every citizen's right to speak and to be politically active in their community. I understand that the Council has received a recommendation to raise the limit on campaign contributions to $300. in considering what is right to do in line with your obligation to give effect to the U.S. and the California constitutions, you should know that in Randall v. Sorrell a $300 limit on campaign contributions to candidates for Vermont state senate was also struck down; as well as a $400 limit on contributions to candidates for other state offices. Although Randall v. Sorrelll was decided with a number of opinions written by a number of justices, some statements made were important to your consideration. To paraphrase in part Justice Bryer's lead Opinion: The interests underlying contribution limits, preventing corruption and the appearance of corruption, "directly implicate the integrity of our electoral process. McConnell, supra, at 136, 124 S.Ct. 619. Yet that rationale does not simply mean the lower the limit, the better." Contribution limits that are too low can also harm the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability. A court must exercise independent judgment when a statute that seeks to regulate campaign contributions is so severe that it could itself prove an obstacle to the electoral fairness it purports to promote. Contribution limits "implicate fundamental First Amendment interests" including freedom of expression and association. The lowest campaign contribution previously upheld by the Supreme Court was $1,075, and Vermont's severe limits on campaign contributions prevented candidates from `amassing the resources necessary for effective [campaign] advocacy,' thus magnifying the advantages of incumbency to the point that challengers were put to such a significant disadvantage that the statute could not survive First Amendment scrutiny. Justice B,&e 's opinion was joined in by Chief Justice Robers and Justice Alioto. In San Luis Obispo, where one quarter page advertisement in the primary daily costs $1,232, or one sticker ad addressed to the City's circulation on a Sunday is $1,229, a $300 campaign contribution limit for city office can not withstand First Amendment scrutiny. The cost of radio, television, mailings, and door hangers amplifies how unreasonably low such an extreme campaign limitation is constitutionally. Justice Kennedy and Thomas, in the Randall v. Sorrell concurrences indicated that they agreed with the result, but in varying language indicated that they would have gone farther to reverse older opinions upholding the concept of campaign contribution limits. Readoption of Chapter 2.40 of the Municipal Code restricting campaign contributions to only $300 would bKro—ol-h-a-My and poses significant risk for drawing the City into violations of individual and collecti rigl�._t xercise free speech, free press, and free assembly. As the Council knows the nation's highest court has been very active in reviewing and striking down campaign finance limits. Comments made by a majority of the Justices in the back to back opinions of Citizens United and American Tradition Partnership, Inc., vs Steve Bullock, Attorney General of Montana have prefaced a sea change in campaign finance regulation. www.stewjenkins.com 2 On October 8, 2013, the U.S. Supreme Court heard argument in McCutcheon v. Federal Election Commission which examines whether placing a limit on contributions to non -candidate and to candidate committees can be imposed at all by statute (or by extension by a local ordinance). No reason exists to put the city at risk of being sued by civil rights advocates by re -adopting an ordinance already unconstitutional under Randall v. Sorrell. Before moving to craft a replacement (whether with higher limits on campaign contributions or other regulations) a sensible move for the city council would be to wait, and to permit the ultimate decision in McCutcheon to inform your decision. While a reading of Randall v. Sorrell might suggest that setting higher limits on contributions to City Council candidates that matched those imposed on California state assembly and state senate candidates might pass muster, clearly a decision in McCutcheon may well make those higher limits unlawfully restrictive. Waiting to craft local ordinances tied to restricting campaign contributions until after the Supreme Court issues its opinion in McCutcheon would be the City's most prudent action. But the City need not ridgidly tie itself to outmoded models restricting campaign contribution. Several municipalities and states have built voluntary public campaign finance systems which work well, prevent corruption, and largely free candidates and office holders from spending most of their "campaign time" seeking donations from special interests. Officeholders and candidates have found themselves free to spend their time finding out what their constituents actually needed. Lobbying by large donors and bundlers representing special interests became a thing of the past. Though voluntary, where these systems have been built the public support for their use has made those who remained outside those programs to instead fund their campaigns with large contributors and corporate interests less attractive to the public. Like any new idea these have generated some legal challenges. But, except for matters in the margines of the adopted public finance statutes, these public financing systems have largely been upheld. Instead of defending an ordinance structure likely to be found unconstitutional, I urge the Council to consider instead drafting a public campaign finance ordinance that will in fact be better for the citizens of San Luis Obispo than Chapter 2.,A. Jenki www.stewjenkins.com 3