By Savannah Blackwell, SFProgressive.com Editor
Randy Shaw and Casey Mills of Beyond Chron reported on Sept. 23 that District Attorney Kamala Harris appears to have run afoul of a local law governing campaign activity (see ``Kamala Harris and Phil Ting”). If Harris -- charged with prosecuting those who break San Francisco’s laws -- indeed used her campaign letterhead to solicit donations on behalf of assessor candidate Phil Ting, then she’s a lawbreaker herself.
By law, Harris should not even be the city’s District Attorney. Had the San Francisco commission charged with enforcing San Francisco’s campaign finance ordinance strictly followed the law in 2003, she would have been disqualified from the race.
I am not on thin ice here. I know this story very, very well. What happened in fall 2003 was a huge travesty. A candidate got away with thumbing her nose at the very heart of San Francisco’s campaign finance laws. In essence, she was able (illegally) to buy the job.
Here’s what happened: In August, 2003 I got a call from Joe Lynn, then a staffer at the Ethics Commission. He called to tell me that a worker from Harris’s campaign had come down to the agency’s office to ask how Harris could get out of having signed a pledge to abide by the race’s spending limit of $211,000. Lynn told me he explained to the worker that there was no way out of the pledge: it was legally binding. “Something’s up,” he said.
I had another piece of information that enabled me to put the picture together pretty quickly. A Harris volunteer had called to tell me the candidate had run out of campaign material. Signs, handouts -- everything was gone. Last in the polls, she certainly needed to keep promoting her candidacy. So it appeared there was some sort of kibosh on expenditures. Yet I knew from campaign records that Harris was having no trouble raising big bucks. With the help of Willie Brown-ally Susie Tompkins Buell (of the Esprit fortune), the campaign was pulling in major dollars.
So what was going on? Harris had spent so much dough trying to improve her name recognition that she was at risk of exceeding the limit and breaking her legally binding pledge. After spending some $200,000, she had only pulled up about three percent in the polls and hit 12 percent – way behind incumbent Terence Hallinan and candidate Bill Fazio. (see SFBG,``Harris’s Money Problems,” 9/17/03)
Then, shortly after Labor Day, two slick, glossy mailers – focusing on gang and domestic violence – hit voters’ mailboxes. I knew we were looking at a mailing of at least $45,000. “Holy smoke!,” I thought. “She just said, ‘Screw the law!’”
I started putting together an item for the Bay Guardian’s “Campaign Watch.” On Monday, Sept. 15, I phoned David Looman, her treasurer and a long-time friendly source. He admitted that the campaign was in a hell of a bind. I spoke with Harris campaign manager Jim Stearns, who, frankly, got nasty. Stearns was another longtime friendly source. I knew he was irritated I was raising an issue he did not want to address.
Fast forward to Sept. 25 – the day candidates were due to file their finance records with the Ethics Commission. I got a call from Lynn, informing me that Harris had turned up at the agency’s office with a report showing she had blasted some $100,000 past the limit. Treasurer Looman wasn’t there. Instead, Harris brought Jim Sutton, a campaign attorney who worked with Willie Brown’s allies. Sutton, who became her treasurer at that point, specialized in finding loopholes to help his big money clients prevail at the polls. (see SFBG, ``The Political Puppeteer” 2/4/04)
He also happened to wield a great deal of influence over Ginny Vida, who, at the time, served as the agency’s executive director. Shortly after huddling privately with Sutton and Harris, Vida fired out a press release announcing the limit in the race was lifted.
“Now how could this be?” I asked. There was only one legal way for the limit in the race to be lifted: a candidate who did not sign the pledge (in this case that was only Fazio) had to go past the limit (which Fazio did not). Things were getting really smelly really fast.
Then, the big stinker: the Ethics Commission bought Sutton’s claim that Harris had no idea her pledge was binding. On Friday, Oct. 3, the panel took up the matter. And after a closed session lasting until 12:30 a.m., the commission decided to fine Harris $34,000 and make her state in her campaign material that she erred in pledging to abide by the limit. The key evidence – Lynn’s information regarding the Harris worker who inquired about breaking the pledge – was never investigated. (see SFBG,“Unethical Ethics,” 10/8/03)
Sounds like tough punishment? Not if you read the law. The ordinance clearly states that if a candidate is found guilty of knowingly breaking a pledge to abide by the limit, that candidate is guilty of a criminal violation and -- if convicted before election day -- would be disqualified. (The law also states that the candidates bears ultimate responsibility for the conduct of his or her campaign. So even if by some stretch of the imagination she did not know what Stearns and Looman clearly knew, ignorance would not fly as a defense). If convicted after the election, the candidate would be barred from holding office in San Francisco for five years. (In addition, the commission could have fined Harris three times the amount she spent past the cap by the Sept. 25 filing -- roughly $300,000)
Instead, Harris was able to spend freely and oust Hallinan. She poured a record $1.15 million into her campaign (Hallinan spent a mere $362,000). Stearns used that cash wisely -- whipping out a massive amount of carefully targeted campaign mail. There were special treatments for women and queer voters, those who spoke Chinese or Russian as well as residents of the Westside. It was some blitz. And it worked.
The Ethics Commission is due to consider the issue of the Ting donation solicitation on Monday, Oct. 10. In comparison, it is a minor matter. But let us hope, for justice’s sake, that the Ethics Commission actually does it jobs this time.
p.s. Why is the penalty so stiff for knowingly breaking a legally binding pledge to abide by the limit? Consider this: the idea behind spending limits is to discourage large expenditures of cash from determining the outcome of elections – something voters say they want. The idea is also to discourage campaigns in which the candidate would be beholden to wealthier interests than others. But there’s more at issue: once a candidate has agreed to abide by a limit, he or she has made a commitment to play by a certain rule of the game. Other candidates would consider that in handling their own races. If a candidate suddenly changes his or her mind, that candidate has changed the rules of the game midstream. Moreover, in this case, the candidate would have broken his or her word – something that should matter to voters as they evaluate candidates’ characters.
Email SFProgressive editor Savannah Blackwell at firstname.lastname@example.org