The Escalation of the Ethics War in San Diego

The ethics war in San Diego is heating up. It has escalated from elected officials pointing out problems they have with the city's ethics commission to the future existence of the EC. The latest battle presents an excellent window into the mindset of those who oppose government ethics, especially, in this case, the enforcement of campaign finance rules.

The latest battle is dueling op-ed columns in the San Diego Union-Tribune. One column was written by the EC's executive director, Stacey Fulhorst. The other column was written by Jim Sutton, who describes himself as "a San Francisco attorney who has practiced before every local ethics commission in California. He teaches election law at Hastings College of the Law."

It's telling that a San Francisco lawyer rather than, say, a San Diego official was chosen to say why San Diego has no need for an ethics commission. It's also telling that the lawyer chosen has been involved in several campaign finance scandals in California, including one where his own firm received the largest campaign finance fine in San Francisco history: "nearly a quarter-million dollars – for failing to properly report the $800,000 donation Pacific Gas and Electric Co. made to help defeat a public power initiative in 2002," according to an article in the San Francisco Bay Guardian.

What's especially upsetting about this case is that Sutton insisted that the failure to report the $800,000 donation was inadvertent, a mere oversight.

Sutton's practice involves helping candidate committees, political committees, and referendum committees get around state and local campaign finance laws. He has been accused of doing this in ways that are not exactly honest or transparent. Let's see how his column fares.

He writes that the San Diego EC "created a brand new ethics law in 2002, which manages to span 25 pages while containing only one substantive addition to state law: requiring the mayor and council members to file additional financial disclosure forms midyear. A 2007 lobbying law has done little more than increase the paperwork that lobbyists have to file every quarter."

Here's what the EC director says about people who say that the city’s needs can be met entirely through state law. "What they don’t mention is that the state does not set or enforce local contribution limits, nor does it regulate many other local campaign activities (such as postelection fundraising to repay personal loans) or require audits of campaign statements. They also fail to mention that the state does not in any way regulate the lobbying of local officials."

What does the California Fair Political Practices law say? Section 82039, for example, says that the definition of  "lobbyist" includes only those who lobby state officials.

So, Sutton is clearly one of these people who "fails to mention" this. He makes it seem as if the state were handling everything fine, and that the San Diego EC, like its fellows in San Francisco and Los Angeles, "sought to expand their authority" and run up the costs to local taxpayers. But the fact is that San Diego's laws go far beyond the state law in many ways. It's these laws more than the EC itself that are an obstacle for Sutton's clients. But in a recession, it's easier to focus on people who cost money and might or might not have done what they're accused of doing, than on laws that can be looked up online.

So I wonder, is Sutton's representation of EC member and staff motives just as false as his descriptions of ethics laws? If a man has to misrepresent law and attack the motives of others, it is likely that he does not have good arguments to make.

But Sutton does make other arguments in his column. For instance, he says that "the laws promoted by these local commissions invariably go beyond First Amendment boundaries" and refers favorably to a new suit against San Diego's campaign finance laws.

I wrote a blog post about this suit in December. It concerns, among other things, the city's $500 contribution limit with respect to independent expenditures.

In his insistence that ethics laws "invariably" violate the First Amendment, Sutton ignores the fact that two court decisions, one concerning Los Angeles in 2009, another concerning San Diego four years earlier, supported contribution limits. Who knows how the new case will come out. But Sutton's wholesale attack on the First Amendment legality of campaign finance laws has no basis in law, although the recent Supreme Court decision in the Citizens United case will certainly help his case.

It appears that Sutton's column is part of some San Diego officials' ongoing war on the city's EC. According to an article in today's Union-Tribune, "Support among the city’s political elite for the San Diego Ethics Commission is at its lowest point." The article goes on to describe events I've already described in blog posts: 1  2  3.

Then Craig Gustafson, the journalist, writes, "The fact that this is all happening as the commission ramps up the frequency and heft of its fines hasn’t been lost on those who closely follow the watchdog agency." In fact, according to the article, one council member is planning to use an EC hearing involving her case "to, in essence, put the ethics panel on trial."

The council member is not arguing that she is innocent. "Instead, she accuses investigators of going on fishing expeditions, abusing their power and making her campaign treasurer cry."

The lesson is that if an EC does its job, it will ensure the enmity of those they enforce the rules against. Of course, the criticisms will focus on enforcement, even though enforcement is not an EC's central duty. Education and advice are more important, but if you mention them, then the picture changes from an over-reaching commission to elected officials who ignore the laws they are instructed to follow and who fail to seek advice.

Robert Wechsler
Director of Research-Retired, City Ethics

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