In the wake of an $11 million mayor’s race, the San Diego City Ethics Commission is proposing a host of changes to local electioneering laws.
If enacted, several of the proposals would circumscribe the activities of so-called independent committees. These entities are permitted to raise unlimited funds from nearly any source but are prohibited from coordinating strategy with candidates’ campaigns.
During the last campaign, independent committees raised and spent millions more than the mayoral candidates’ own campaigns.
At a meeting yesterday afternoon — the first in a months-long process — the commission took stock of some limited public reaction they’d received to the proposed changes.
While she didn’t point the finger at specific campaigns, Ethics Commission Executive Director Stacey Fulhorst argued for tightening requirements surrounding the circumstances under which independent committees must identify major donors on advertisements they purchase.
For example, Fulhorst said she’s seen committees with no cash on hand spend thousands of dollars to purchase advertisements on credit. After the advertisements run — or after the election is over — those committees will receive significant contributions that allow them to pay the vendor. Such arrangements render toothless requirements that major donors be disclosed on advertisements.
“This is not a solution in search of a problem,” Fulhorst said.
Among the proposals being considered by the commission:
- Amending the regulations to expand the definition of “contribution” to include the republication and dissemination of candidate campaign-created materials by independent political committees. This would have the effect of greatly limiting the ability of independent committees, to, for example, take campaign videos published on candidates’ web sites, download them and pay television stations to run them as television advertisements, as such actions would then constitute an illegal non-monetary contribution to a candidate’s campaign.
- Amending the regulations to
- require candidate campaigns and other political committees to retain correspondence — such as emails and text messages — regarding contributions and expenditures.
- require vendors doing business with campaigns and other political committees to retain records regarding contributions and expenditures for a period of four years.
- Amending the regulations to
- require independent political committees primarily formed to support or oppose candidates to pay in full at the time of purchase all advertising and prohibiting such committees from purchasing advertising on credit.
- mandate that a verbal agreement between a political committee and a donor to make a future contribution to that committee be regarded as the same as a written agreement between those parties — that is, to be regarded as a contribution and immediately trigger the same disclosure requirements as would an actual contribution.
- Amending the regulations to require that so-called “issue ads” that do not expressly advocate for or against a particular candidate but that do identify a candidate by name be accompanied by a disclosure identifying the political committee paying for the advertisement. This would bring the disclosure requirements for issue ads up to the same level of so-called “electioneering ads” that do expressly advocate for or against a particular candidate on which the committee paying for the ad is already required to be disclosed.
“A very sticky area”
Stephen Kaufman, founder of the Los Angeles-based election law firm Kaufman Legal Group, urged the commission to proceed cautiously on several of the proposed changes.
Kaufman pointed to proposed restrictions on the use of candidate materials by independent committees. There are cases, he said, where an independent committee reproduces in full a candidate’s campaign video. Most reasonable people would agree that is over the line, he said, but that “the area that creates an issue is everything in between.”
“I think if you try and regulate and list every possible thing that could be perceived as coordination and everything that’s not, you’re going to get into a very sticky area,” said Kaufman, whose firm recently did work for the Labor Council-backed Working Families for a Better San Diego, a pro-Alvarez independent committee.
He also expressed concern over a proposal to require vendors doing business with campaigns and committees to retain relevant records for four years. Under current law, campaigns — but not companies doing business with them — are required to maintain records relating to contributions and expenditures for a period of four years.
The proposal would also require campaigns and committees to retain correspondence, email and text messages associated with contributions and expenditures.
Kaufman argued that the business records policy is too strict and would be impossible to enforce.
“Vendors can range from everything from sophisticated political consultants to someone who’s just providing basic goods and services to a campaign and to bring them under the ambit of a campaign finance ordinance is, I think, going too far,” said Kaufman, a former attorney for Al Gore’s presidential campaign during the Florida recount.
Zeroing in on the correspondence retention proposal, Kaufman emphasized that campaigns are not “an institution that sits there and does things at its whim” but are rather sprawling organizations made up of individuals — both professionals and volunteers — often using their own computers and phones in the course of campaign business.
“The reality is that these people go away at the end of the day when a campaign is over,” Kaufman said.
Kaufman also expressed concern about a proposal to require independent committees to pay vendors in full for advertising at the time it places an order for a campaign advertisement.
Ethics Commission staff proposed the amendment in the hopes of strengthening requirements surrounding the disclosure of major donors to independent committees that purchase political advertising.
Noting that state law already allows for penalties against political committees that seek to skirt advertising disclosure requirements, Kaufman suggested additional regulations were unnecessary.
“Crafting regulations to go after the one percent or half percent that may be abusing the laws is not always the way to go,” said Kaufman.
Under current law, independent committees formed primarily to support or oppose a candidate must identify the names of their top two donors of $10,000 or more on their campaign advertisements.
A growing issue
Gil Cabrera, a former Ethics Commission chairman, also attended the meeting to voice support for tightening restrictions on the duplication of campaign materials by independent committees.
“This is a growing issue in campaigns,” Cabrera said. “What we’re seeing in San Diego is the complete duplication of materials.”
Cabrera suggested that the trick would be determining where, precisely, duplication went too far, proposing that the commission might allow the duplication of a candidate campaign’s pictures but restrict the duplication of its videos by independent committees.
Former California state assemblywoman Lori Saldana also spoke at the meeting and urged commission members to think of ways to limit the influence of money in local races.
Introducing herself as a “recovering elected official,” Saldana lamented the time candidates and elected officials must spend soliciting contributions for their campaigns.
“Dialing for dollars takes an inordinate amount of time away from people who want to serve in public office,” Saldana said.
The former three-term elected official suggested the Ethics Commission consider establishing a system of voluntary public financing for city campaigns.
“The money chase doesn’t serve policy, it doesn’t serve constituents, it doesn’t serve government in the end,” Saldana said.
Tougher restrictions than elsewhere?
Several members of the Ethics Commission also quizzed both speakers and Fulhorst on the proposed amendments.
Commissioner Alex Kreit said that friends of his who’ve run for local office have told him that treasurers in other parts of California have hesitated to work for San Diego campaigns “because of a perception about some of the requirements that they’re forced to meet.”
“On the one hand, I can understand the usefulness of [strict record retention requirements]. On the other hand, campaigns are ephemeral things,” Kreit said, noting that campaigns are often run by volunteers.
He said he worried that professional treasurers might shy away from working for local campaigns if additional recordkeeping requirements go into effect.
Responding to Kreit’s comments, Fulhorst noted that, when she had spoken with professional treasurers in the past about a perceived hesitation to work on San Diego campaigns, many mentioned that the city’s former $250 contribution limit meant campaigns did not always have the funds to meet the billing requirements for some professional treasurers.
“Anytime you become more strict than other jurisdictions, you run the risk of losing people,” Fulhorst said.
She went on to note that after considerable outreach on her behalf to the state’s treasurers, increasingly, treasurers are willing to work in San Diego, pointing to recent elections that saw multiple professional treasurers keeping the books for local candidates.
The commission is expected to continue discussion on the proposed amendments at its next meeting on April 10. Until then, members of the public wishing to comment on any of the proposed regulations can email the Ethics Commission at firstname.lastname@example.org.