Court ruling: Free speech and the mother’s milk of politics

Last month’s U.S. District Court ruling on the city of San Diego’s Election Campaign Control Ordinance (ECCO) was humdrum news to most people, but for those of us engaged in the local political arena, it was nothing short of huge.

The ruling was more than a victory for San Diegans and the plaintiffs – it was the latest chapter in an ongoing First Amendment fight for free speech waged in courtrooms across the country.

In 2002, San Diego candidates and groups supporting or opposing candidates for city office were able to accept contributions from individuals, but prohibited from accepting contributions from organizations.

The Lincoln Club of San Diego County, a pro-prosperity political action committee (PAC) and other organizations like it that were accustomed to participating in the electoral process via direct mail and other types of voter contact independent of a candidate’s campaign, were also accustomed to accepting contributions from individuals, corporations and organizations. Accordingly, the club entered into an agreement with the city with respect to how the club must attribute contributions it receives from individuals for independent expenditure (IE) campaigns in support of, or opposition to, candidates. However, ECCO’s prohibition of contributions to groups like the Lincoln Club from “organizations” was left intact.

Two years later – long before the 2010 U.S. Supreme Court case (Citizens United v. FEC) that held the First Amendment prohibits government from placing limits on independent spending for political purposes by corporations and unions – the Lincoln Club challenged ECCO’s limitations in court. We were unsuccessful and forced to keep operating by the 2002 rules.

When an individual or company makes a contribution to a political party or committee, they expect up to the full amount – not just a fraction – can or will be used in races of mutual interest. ECCO made this impossible.

Between 2004 and 2007, laws that imposed restrictions on PACs similar to ECCO were overturned in San Jose, San Francisco, Long Beach and elsewhere.

The timing appeared perfect to take another shot at ECCO’s clearly unconstitutional restrictions, but this time we approached things differently.

In January 2008, I contacted the local branch of the American Civil Liberties Union (ACLU) to share the Lincoln Club’s concerns about ECCO’s restrictions on the First Amendment.

In early 2009, one of the leading First Amendment law firms in the U.S. agreed to lead the litigation against the city. Plaintiffs were added and the complaint’s scope grew. The ACLU filed a brief of support.

The Lincoln Club chose this path because it firmly believed the city’s Ethics Commission, which drafted the limitations, was violating a fundamental right – freedom of speech. We won that argument last month and, along the way, leveled the playing field with organized labor.

Faced with onerous restrictions like those imposed by ECCO, unions simply outmatched groups like the Lincoln Club in collecting individual contributions and making expenditures.

Unlike unions, political parties and groups like the Lincoln Club do not have a pool of employees whose political contributions are siphoned from their paychecks every month, and recruiting enough members to match individual contributions from tens of thousands of government employees is not possible.

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Court ruling: Free speech and the mother’s milk of politics