Jess Durfee. Photo by Phyllis Posner.
“All politics is a matter of working hard without reward, or with a living wage for a time, in the hope of booty later.”—Ernest Hemingway
San Diego County Democratic Party Chairman Jess Durfee may have relaxed for a few days on a recent Canadian cruise, but he returned steamed up over the local GOP's court victory allowing a slate mailer of party-endorsed candidates and propositions to be included in thousands of Republican primary sample ballots, which begin hitting mailboxes this week.
Regular readers of Spin Cycle will recall the last installment, in which local Republican Party poo-bahs—fresh from exploiting an obscure, 35-year-old section of the state Elections Code—were all but popping champagne corks after a Superior Court judge declined to stop party leaders from inserting into 300,000 June 8 GOP sample ballots a voters guide touting the local GOP's favored candidates and ballot-measure positions.
Opponents contend that the county government, which administers elections, is unfairly subsidizing the distribution of partisan campaign literature because the local Republican Party only has to pay the estimated $23,000 in printing costs, but no postal charges. Sending a similar slate mailer by itself through the mail, opponents argue, would cost at least $50,000 more.
“They think they found a loophole,” Durfee said of his GOP nemeses. “Well, loopholes—just like tax loopholes—the public hates those. They hate people who look for them and abuse them. And they find it really offensive especially when it's their tax dollars being manipulated to achieve the goal of partisan players.
“That's why we found it offensive from day one, and we think the public will, too.”
Just how offensive? Well, after Spin Cycle last talked to Durfee, his party strategists got together and decided on another tactic.
“Dems to Charge Registrar and Republicans with Legal Violation over Postage Subsidy,” the headline of the Democratic Party press release screamed. In it, the Democrats cite regulations adopted by the state's Fair Political Practices Commission that require “government agencies paying for campaign-related communications to report the value of their expenditure as a contribution.”
“If the County government is now in the business of sending partisan propaganda under its official seal,” Durfee is quoted in the release, “it must register as a campaign committee and report those contributions under California law like any other committee.”
Durfee continues: “The intrusion of partisan politics into government-funded activity is not only an affront to the other candidates and propositions that will be on the ballot in these nonpartisan races. It is an outrage to the voters and taxpayers of San Diego County and a sickening blow to the integrity of our election system.
“We will pursue every recourse until it is stopped.”
Spin Cycle ran the Democratic Party argument that the county government should take the unprecedented step of registering as a political action committee past campaign ethics guru Robert Stern, executive director of the Los Angeles-based Center for Governmental Studies.
“It's certainly something that we have not seen before,” Stern told Spin Cycle before asking for more time to think about its ramifications. A few hours later, Stern was back on the phone. “This is a very interesting question. So we thank you very much for asking us about it.”
He agreed that FPPC Regulation 18420.1, as the local Democrats contend, does require state or local government agencies to file public disclosures of payments “made in connection with a communication to the public that expressly advocates the election or defeat” of a candidate or ballot measure. But Stern, former counsel to the FPPC, noted an exception in the regulation allowing “a communication clearly and unambiguously authorized by law.”
“It is our interpretation,” Stern said, “that since the judge has authorized it, there is no disclosure requirement. The judge said it's authorized by the Elections Code. Yes, it's only one judge, and, obviously, if it gets reversed, then there's a problem.”
Stern also said he might have had a different opinion had the insert not been challenged in court. “If the Registrar of Voters had just said, ‘My interpretation is I can accept this,' then there would be some question about it. But because a judge has ruled on it, that makes a huge difference.”
Not that Stern doesn't see the Democrats' point. In fact, he had to chuckle over what county government had in essence done—something the all-Republican Board of Supervisors would likely shudder over. “In a sense, it's public campaign financing for the county,” Stern laughed. “It's actually helping to publicly finance a party position. They may not call it the same thing. The term they would come up with is, ‘Authorized by law.' But clearly it's an absolute benefit” to the local GOP.
Asked whether GOP opposition to public financing is indeed thawing, local Republican Party Chair Tony Krvaric said succinctly in an e-mail, “No.” When asked to expand on that assertion, Krvaric added, “We are following the law. It's no more subsidized than statements in the sample ballot from candidates and ballot measures.”
Durfee remains undaunted. “In the world of politics,” he said, “anything that has a fair market value, that's the value. This slate-mailer insert constitutes a contribution not only to the Republican Party but to each of the candidates and proposition campaign committees that's supported. And the fair market value of those contributions are, under California law, supposed to be reported to the FPPC.”
Deborah Seiler, the county's registrar of voters, disagreed, saying the County Counsel's office advised her that the insert “is permitted by law and therefore does not appear to violate any FPPC statute or regulation.” Seiler said she also conferred with an FPPC attorney, who “does not believe a violation exists.”
Seiler dismissed Durfee's argument as “opinion, not law, regulation or judicial finding.”
Despite numerous calls and e-mails seeking comment, the FPPC did not respond to Spin Cycle's inquiries.
And despite Durfee's contention otherwise, Seiler insists that her office will be tracking phone calls pertaining to the new sample ballot insert. Durfee said he'd been told that such calls would be forwarded to the local GOP, suggesting that complaints might disappear into a black hole.
“I have specifically asked staff to track the number of phone calls related to the insert,” Seiler said, “and I plan to share this information with any party that requests it.”
Predicted Durfee: “I'm guessing there are some Republicans out there who will be very upset when they see this electioneering included in their sample ballot.”
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