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Council gives urgency ordinance a thumbs down for this election

By Monica Heger

Council members decided it was too little too late for new regulations on campaign expenditures.

City Attorney Rick Doyle presented an urgency ordinance to the council that would place new restrictions on campaign expenditures by independent committees pertaining to the Nov. 7 election.

An urgency ordinance, if passed, takes effect immediately, but requires the vote of eight council members instead of a simple majority.

Instead, council members voted unanimously on Oct. 10 to have the city attorney's office study the ordinance further.

This was one issue mayoral candidates and council members Chuck Reed and Cindy Chavez agreed on.

"We've already lost this election to special interest groups," Reed said.

To which Chavez added, "In many respects, the horse left the barn in the primary."

Reed and Chavez proceeded to attack both the labor unions and the San Jose Silicon Valley Chamber of Commerce for violating campaign expenditures. The elections commission, following a complaint about the Chamber's spending, found its political action committee was in violation of San Jose's campaign expenditure ordinance by sending out a mailer criticizing Chavez's vote on the Grand Prix subsidy, among other issues. The mailers were funded by contributions that exceeded the $250 per donor limit for campaign expenditures.

The Chamber argued the mailers addressed issues and did not endorse a specific candidate, and therefore could not be regulated under San Jose's ordinance. The Chamber sued the city for violating its First Amendment rights, and a federal district court ruled in the Chamber's favor. The courts also declared a portion of San Jose's municipal code was unconstitutional and, therefore, unenforceable for the rest of the election. Thus, independent committees have been operating with no campaign contribution limits since the ruling on Sept. 20.

The council asked Doyle on Oct. 3 to put together an urgency ordinance to reinstate campaign expenditure restrictions on independent committees for the remainder of the election. The urgency ordinance attempted to address some of the legal concerns by raising the contribution limits from $250 to $500 and tightening the definition of expenditures that would be regulated. Under the urgency ordinance, communication expenditures such as mailers and fliers would be regulated, but not television commercials. Also, the communications would have to fall within 30 days of the election.

Councilman Dave Cortese had concerns about the constitutionality of the ordinance, despite the tighter definitions.

"It would, in my opinion, trample on First Amendment rights," Cortese said. "It's unconstitutional to regulate speech based on the message it contains, and that's exactly what this ordinance does."

The city attorney's office will study how to better regulate campaign spending without violating the First Amendment, which the council will review at a later date.

Councilman Ken Yeager was the only council member who was ready to approve the urgency ordinance.

"My worry is that if we don't do something, then we're not better off because we're frozen," Yeager said.