Chuck Reed is a good lawyer. His recent appeal of a $1 fine for violating FPPC rules—by giving $100,000 to support Councilmember Rose Herrera’s 2012 re-election campaign—was successful. But it was still cheating and it was wrong.
Almost all of the laws that govern contribution and spending limits are unconstitutional. But everybody should have to play by the same wrong rules. Reed clearly violated the law on the books. By winning the court challenge he proved that the rule was unconstitutional. However, he still provided an unfair advantage in the election because the other side obeyed the law that was in place. (Full disclosure: I ran the campaign of Herrera’s challenger, Jimmy Nguyen.)
The same could be said for Sam Liccardo’s current ethics issue. Did Liccardo begin fundraising before San Jose campaign rules said he could? Of course. But the law is unconstitutional for many of the same reasons the Reed violation was overturned. Liccardo has chosen to give some contributions back, but only those that were solicited on his behalf before he could “officially” ask.
The real problem is that to get a law declared unconstitutional one has to break it. To get proper standing in a court of law one has to experience some harm from the law being enforced. There are a plethora of local laws on the books that remain unconstitutional. But few challenge existing laws, because it takes resources to do so.
There should be a better way, but this is the reality of our jurisprudence system. In the final analysis, doing the right thing is not always about whether it is legal. And there are plenty of instances where people are free to make bad decisions. Lying is actually a constitutionally protected form of free speech in political races. It is not a crime, but it does not make it right.
And this brings us back to the main point: People should play the game fair. Just because one can get away with cheating under the wrong rules, doesn’t mean one should violate the rules—unless you consciously and publicly decide you are going to challenge the law’s validity in the court system. At least that would level the playing field.