The Santa Clara County Democratic Central Committee is on the fast track to endorse its preferred mayoral hopeful, Dave Cortese. But there are growing concerns that the group’s backing will give that candidate the unfair advantage of bypassing campaign finance laws that apply to individuals in the race.
Campaign staff of Councilman Sam Liccardo, the fundraising frontrunner in the mayor’s race, challenged the DCC in emails to abide by the same rules governing candidates that prevent unlimited spending in an election. Ragan Henninger, Liccardo’s campaign manager, said in an email to DCC Chair Steve Preminger that the organization should not use donations from casinos, or take excessively large contributions from companies that have contracts with the city to support its chosen candidate. Unlike mayoral candidates who can’t accept more than $1,100 at a time in individual donations and a total $794,000 if they agree to a voluntary expenditure limit, Henninger notes, the DCC can rake in unlimited amounts of cash to spend on their chosen candidate.
Henninger cautioned that the DCC’s endorsement and accompanying coordination can violate the spirit of San Jose’s campaign laws, which were designed to prevent candidates from buying elections. Preminger responded in an email by calling the campaign’s request “grandstanding.”
The debate rekindles a conversation about campaign coordination sparked last year, during Cindy Chavez’s bid to replace ex-county Supervisor George Shirakawa Jr. Chavez’s campaign became the target of a FPPC investigation for coordinating with the South Bay Labor Council and DCC, after identical mailers were sent out by each of the three entities. The FPPC cleared Chavez days after she won the election, declaring that lock-step coordination is perfectly legal for “member-to-member communications,” which is literature mailed to any registered Democrat even if they’re not part of the DCC. The SBLC, which also endorsed Chavez, was able to target all local union members.
Critics called the decision a massive loophole in campaign law. Chavez’s political consultant, Ed McGovern, told San Jose Inside: “I don’t make the rules. I just follow them.”
Bypassing regulations on spending and coordination, while perhaps ethically dubious, is technically legal. In a 2010 ruling, Citizens United v. Federal Elections Commission, the U.S. Supreme Court said it’s perfectly OK for unions and corporations to spend as much money as they want to sway people to vote for or against a candidate. The 5-4 decision chucked out an age-old rule banning moneyed interests from making unlimited independent expenditures.
Still, just because it’s permissible under law, doesn’t mean it’s right, Henninger argues. There’s a reason Citizens United is so controversial for Democrats—mainly seen in races sponsored by men like the Koch brothers. In her email to Preminger, Henninger cites an example of potential conflicts of interest, such as if the DCC received a $50,000 gift from Rural/Metro, the company that provides ambulance services for the county. Rural/Metro depends on public contracts to do business—Cortese was a key vote in giving the company contract with the county—and the DCC could potentially turn around and use the company’s contribution directly on member-to-member communications in support of Cortese.
“Because this is an issue that directly affects city and county governance, we feel that the public should be given the opportunity to follow and weigh in on this debate,” Henninger wrote, urging the group to change its bylaws to fall in line with election rules governing candidates. “We know time is short, but the [DCC] had no trouble changing their bylaws quickly to speed up their endorsement process. We are asking [DCC] to follow the party’s own platform that explicitly advocates for transparency in campaign finance.”
DCC Communications Director David Cohen told San Jose Inside that he wondered if the protest from Liccardo’s camp is directed at other groups, like business chambers or unions.
“These demands show that their protest of the process is really about campaign spending and not the endorsement,” he said. “The candidates don’t like the change in the endorsement timeline because they fear that they may not secure the endorsement and worry about independent expenditures. Does that mean they are not participating in the endorsement process of the Silicon Valley Chamber of Commerce? Have they made similar demands to all other organizations who spend money on campaigns in Santa Clara County?”
Cohen rebuffed Henninger’s comparison to Citizens United.
“The Democratic Party has the right given to them by law to reach out to their members and provide information during a campaign,” he said.
Preminger also dismissed Henninger’s directive.
“As you state, the FPPC allows county party committees to coordinate with candidate committees on member-to-member communications,” he wrote. “Of course, this is one reason the endorsement of county committees is so sought after. My suggestion is that rather than protest our unquestioned legal right to support endorsed candidates as we deem appropriate, you have your candidate fill out the questionnaire and seek our endorsement.”
In responding to Preminger on Wednesday evening, Henninger noted that a lot of people besides Liccardo worry about the committee’s role in the election.
“In fact, the concerns he is raising are shared by a number of candidates for mayor—so much so that many have already opted out of seeking the party’s endorsement,” she wrote.
Rose Herrera announced she would not seek the DCC’s endorsement, as did Pierluigi Oliverio. Madison Nguyen evidently doesn’t care enough to try. And now Liccardo questions the ethics of the whole deal. As of Wednesday, only Forrest Williams and Cortese filled out the application seeking the endorsement, according to sources within the DCC.
Williams’ application for an endorsement is a bit ironic, as he has not officially pulled papers to run for mayor. The deadline to file forms with the City Clerk’s office is March 12—about a month after the DCC’s endorsement for mayor should be finalized.