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Barry Jantz

Coalition Challenges San Diego’s Campaign Finance Restrictions

I have written in the past about how the City of San Diego’s campaign finance laws go far beyond those included in the California Political Reform Act.  On top of this, add a City Ethics Commission that oftentimes takes "interpretation" into its own hands, seemingly becoming a policy-making entity instead of a regulatory body that is supposed to simply apply and enforce the already restrictive local laws.

When the fledgling candidate can’t even begin to compete for a city position due to the costly need for professional treasurer, accountancy and campaign software assistance, that marks only the beginning of the problems with the city regs.  What of campaigning for a seat a couple of years or more in advance if one so chooses?  Seems like a fundamental right if you ask even the distant observer.  It’s not.

As a Charter City, does San Diego have the authority to restrict campaign activity in such a manner as to exceed that regulated by the State’s Fair Political Practices Commission?  Good question.  Charter cities do indeed have the authority for localized restrictions in several areas, but when it comes to State Law in the campaign finance arena, who has the answer?

What we have in the City of San Diego is a series of campaign laws long ripe for a challenge on First Amendment grounds.  Yet, what candidates have ever wanted to take on those laws at the risk of being perceived in the media — and at the hands of opponents — as wanting to loosen restrictions on "those bad politicians" in general (and themselves specifically)?  Not many, if any at all.

Well, it’s the middle of winter, but it appears a few folks are stepping up to the plate…

Monday, December 28, 2009
Contact: James Bopp, Jr.
Phone: 812/232-2434; Fax: 812/235-3685;

San Diego’s Campaign Finance Law Challenged in Federal Court
Last week, a coalition of plaintiffs asked a federal court to grant a preliminary injunction to keep  San Diego from enforcing campaign finance laws that violate the First Amendment. One of the plaintiffs, Phil Thalheimer, wants to be able to spend his own money to announce his run for City Council, yet he is prohibited by the law from so much as mailing a letter that even implies he might be a candidate. Another plaintiff, Lincoln Club, wants to be able to spend as much of its own money as it wants for independent expenditures—that is, spending that is made totally without any coordination with any candidate, while plaintiff Associated Builders and Contractors PAC wants to be able to spend money it raises from its supporting businesses for independent expenditures.  Plaintiff John Nienstedt, meanwhile, wants to be able to give more than $500 to the candidates he supports.  And, the Republican Party wants to be able to contribute money to its candidates’ campaigns, and make coordinated expenditures on their behalf.  Yet, San Diego’s laws prohibit each of these plaintiffs from engaging in these activities.
James Bopp, Jr., lead counsel in the suit, stated, “Each of the challenged laws violates the rights guaranteed to all Americans under the First Amendment. The Supreme Court has made clear that candidates should never be told that they cannot spend their own money to support their campaign. Nor should any political party be told that they cannot support their own candidates. The Supreme Court has said that groups that want to spend money independent of candidates have the right to spend as much as they want.  And, the contribution limits of $500 are lower than any the Supreme Court has ever found constitutional.  These laws infringe on the rights of all citizens of San Diego.”
Mr. Bopp further explained that while the plaintiff organizations tend to be pro-business, if the court declares the law unconstitutional, it will benefit labor as well.  Similarly, if the court decides that the Republican Party should be able to contribute to its own candidates, other political parties will be able to, also.  Mr. Bopp commented, “This is not a lawsuit that will only benefit conservatives. If the court agrees that these laws are unconstitutional, all San Diego’s citizens will be able to exercise their First Amendment rights.”

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.

One Response to “Coalition Challenges San Diego’s Campaign Finance Restrictions”

  1. Says:

    Jim Bopp is an excellent attorney, I worked with him on the legal teams that successfully enjoined the disasterous “campaign finance reform” measure Proposition 208 a decade ago. He was the lead counsel in the “Wisconsin Right to Life” case, the first major Supreme Court case to get traction in overturning the “McCain-Feingold” “reform,” which threatened First Amendment rights, and he was also the first attorney on the important Citizens United case, pending before the Supreme Court, that may gut the many unconstitutional infringements of the Federal Election Campaign Act. The plaintiffs could not have done better in getting Jim Bopp for this important job!