Lobbyists sue to block campaign-finance ballot measure

Published online on Sunday, Nov. 08, 2009

California lobbyists have filed a lawsuit in Sacramento Superior Court to stop the vote on a ballot measure scheduled for the June primary election that would make them the guinea pig in an experiment on campaign finance.

The lobbyists say the measure to make them collectively pay approximately $34 million to fund California's statewide secretary of state campaigns in 2014 and 2018 unfairly restricts their free speech rights and restricts people's constitutional right to petition their government.

"Our view is that the First Amendment isn't up for election," said Jackson Gualco, president of the lead plaintiff in the suit, the Institute of Governmental Advocates, and himself a top-level California lobbyist.

The lobbyists' lawsuit names Secretary of State Debra Bowen as the respondent, in her capacity as California's election overseer. But the real party of interest is the Legislature, which last year placed the California Fair Elections Act on the June ballot. The measure was signed by Gov. Arnold Schwarzenegger.

Authored by former Assemblywoman and current state Sen. Loni Hancock, D-Berkeley, the measure would hit lobbyists, lobbyist employers and lobbying firms for $700 each to help pay for the campaigns for two secretary of state races.

"Right now, politicians in Sacramento spend way too much time raising money instead of governing," said Derek Cressman, the Western states regional director for Common Cause. "This would make it possible for candidates to reject big money from special interests and still run a competitive campaign."

Hancock's Assembly Bill 583 cleared the Legislature on tight votes that showed no Republican support and a smattering of Democratic opposition.

It won only after it was amended to knock out the governor's race and elections for two legislative seats from the pilot project in public financing. The bill was sponsored by the California Clean Money Campaign, the California Nurses Association, other labor, environmental and consumer groups, and Common Cause.

Gualco's lobbyist association opposed the bill when it was in the Legislature, along with the California Chamber of Commerce, other business and anti-tax organizations, as well as the state Fair Political Practices Commission and Schwarzenegger's own Department of Finance, even though the governor later approved the measure going to the ballot.

The plaintiffs filed the suit Aug. 25 in Superior Court only after they had registered an identical action in U.S. District Court in Sacramento and saw it dismissed June 15 by Judge Frank C. Damrell. The federal judge threw it out on grounds of lack of "ripeness," because voters had yet to approve the measure and there was no imminent threat of damage to lobbyists.

Loyola Law School professor Richard L. Hasen, an expert in election law, said the lobbyists can expect another tough legal go when their suit comes up for a scheduled Nov. 20 county court hearing in Sacramento in front of Judge Michael P. Kenny.

Hasen said the "ordinary rule" is that lawsuits contesting the constitutionality of ballot measures have to wait until the public votes them in, "on the theory that the voters might turn down the measure and save the court from having to address the constitutional question."

"I know the opponents of these measures have argued a different standard would apply to pre-election review of legislatively placed ballot measures," Hasen said. "But I don't know of any authority - although there might be some - that would say the courts would treat those things quickly."