Supervisor Sean Elsbernd, frustrated over his proposal to gut a key provision of San Francisco’s public finance program, turned to bitter sarcasm, accusing his colleagues of “dereliction of duty” at last week’s Board meeting, setting the stage for this week’s make-or-break vote.
Elsbernd’s loss of control showed the frayed nerves of the newly moderate Board majority unable to corral an eight-vote supermajority as they sweep aside reforms passed when the Board was less influenced by downtown priorities. Forced to either lose on his proposal entirely or delay another week in hopes of convincing one board member to join him, Elsbernd resorted to inflated claims of the consequences for San Francisco if Elsbernd didn’t get his way, threatening the loss of “hundreds of thousands of dollars” needed for essential city services.
As victory edged further from his grasp, Elsbernd derided his colleagues, all but accusing them of chasing unicorns in search of what Elsbernd called a “magic elixir.” Challenging the supervisors who voted against his measure, Elsbernd stopped just short of saying “It’s on like Donkey Kong,” perhaps only because he’s unfamiliar with the game. He then went into a sulk.
For most San Franciscans, the issue was an esoteric exercise in the mathematics of campaign finance, like pitting geometry against trigonometry in a test of theorems about vacuums in space.
The reality was more down to earth. The Board was being asked to change the rules for a mayor’s election just weeks away, and to do so with an approach dictated by the city’s political high rollers intent on flooding the system with campaign money that could provide an insurmountable advantage for themselves.
If this change is approved as it stands, it means that candidates would be denied the ability to match spending with the deep pocket interests at City Hall – where one committee alone has pledged to spend $1 million to influence voters.
The issue arrived at the Board through a process so private that it would make the Bohemian Club envious. A U.S. Supreme Court decision handed down at the end of June narrowly ruled against an Arizona law setting up a public financing program for campaigns.
Cities across the country began pouring through the decision, examining their own laws, and holding hearings to determine how to comply with the Court while saving the law’s intent that campaign spending would not succeed in putting private interests ahead of public interests.
Except in San Francisco.
A Bandwagon Rolls Out of Ethics
Here the issue of falls under the Ethics Commission appropriately deemed a Sleeping Watchdog by the Civil Grand Jury that same month. Instead of conducting an “Interested Persons” meeting, including alerting the veterans of the city’s public financing campaigns, the Ethics Commission simply added one more item to their July 11 agenda. Only the routine notifications went out.
The July 11 agenda already was full. The Commission was set to deliberate on its response to the Civil Grand Jury report faulting Ethics for failures on nearly every item it reviewed. Executive Director John St. Croix was furious, and drafted a response that heaped scorn on the Civil Grand Jury.
At the same time, Ethics was set to hear its first-ever Sunshine Ordinance violation in a case involving the President of the Library Commission. It was an emotional and contentious topic since Ethics had previously rejected every Sunshine complaint – 18 in all – and the pent-up hostility toward Ethics was palpable. It was also one of the points raised by the Civil Grand Jury.
Sandwiched at the end of the meeting was a discussion about the Supreme Court decision and a staff proposal to entirely gut sections of San Francisco’s law.
In all, less than 30 minutes was spent in public hearings and Commission discussion of a key campaign law as the city readied for an election for Mayor, District Attorney and Sheriff.
Unsurprisingly, there were only six speakers on the issue. Most of the testimony came from downtown campaign interests. Representatives of the Committee on Jobs, Building Owners and Managers, the Alliance for Jobs and Sustainable Growth and the Sutton Law Firm spoke in favor of gutting the law and dangled the prospect of suing the City if Ethics didn’t act. Their only caveat was that they wanted additional provisions of the law also repealed.
One speaker, former Common Cause coordinator Charlie Marsteller, urged repeatedly that the Commission do more outreach to experts on public finance laws, including participants in the Supreme Court pleadings. No one else spoke in favor of delay.
Some Commissioners were uneasy about jumping onto the bandwagon but were pushed on board by Commission President Ben Hur, who insisted on action that night. Suggestions of consulting with such reputable experts as Bob Stern, head of the Center for Government Studies and familiar as an advisor on the drafting of the original San Francisco law, were dropped without action. Hur needed four of the five commissioners to pass the measure, and he made it without a vote to spare.
By way of contrast, other cities, from Los Angeles to the State of Maine, began an open process drafting various alternatives that could meet the Court’s test while preserving the law’s intent.
Last week, as the Board met, there were at least 20 options considered to be viable and being weighed by other cities in the context of their laws.
The Center for Governmental Studies had issued a press release even before Ethics met in July pointing to several options that Albuquerque, New Mexico might find sustainable in the wake of the Court’s decision. By last week, those options were fleshed out further. New York’s Brennan Center for Justice issued a list of remedies that became part of a study by the State of Maine’s Clean Elections body.
In July, Maine undertook the steps that San Francisco rejected – pulling together those most knowledgeable about the law, about the court decision, and writing a report with recommendation. Last week they delivered their report ahead of schedule for specific recommendations to the state legislature.
Steven Hill, whose work on San Francisco’s law was seminal, drafted potential avenues to preserve the intent of the law while meeting the court’s test even though he is working on special assignment in Romania.
San Francisco’s Board took up the Ethics Commission proposal endorsed by downtown interests — a “winner take all” for the opponents of public financing.
Elsbernd Smokescreen Obscures Factual Review
Elsbernd and Farrell’s claim that the city could face hundreds of thousands of dollars in legal fees defending the city’s law, only to ultimately lose, was more than a canard. It was a false trail.
No member of the Board or any supporters of the city’s law proposed defending the current law. At most, it would be an issue of defeating a motion for an injunction imposed before the election five weeks away. The cost to the city would be minimal compared to defending the law itself.
Second, any suit to be filed against the San Francisco law likely would come from the Sutton Law Firm that already notified the Ethics Commission that it has a legal argument against the city’s law.
This is the same law firm that served as the treasurer for the City College Bond Committee whose officers pled guilty to felonies last week over money laundering. The Sutton Firm, which also serves as the campaign legal counsel to District Attorney George Gascon, was not brought into the prosecution.
The Sutton Law Firm also holds the record for the highest fines ever levied in San Francisco for violating the city’s ethics laws, which took place when they failed to disclose contributions by PG&E in a ballot battle over public power. In that case, the Sutton Firm itself had to pay hundreds of thousands of dollars for its role.
The Sutton Law Firm also was at the center of the controversy over the Gavin Newsom 2003 Inaugural Committee expenses which appeared to be earmarked to illegally pay campaign costs. That incident resulted in a James Madison Award for Oliver Luby and Kevin Liban for their refusal to destroy the emails from the Sutton Law Firm that appeared to outline such a scheme. The Firm claimed it was all a mistake.
This does not make the Sutton Law Firm incompetent, which it is not, but it is a record of seeking to push the envelope beyond what is always legally defensible.
Currently the firm is involved in a number of San Francisco political contests, including as the attorney for some of those that testified at the Ethics Commission. In an awkward footnote, the Sutton Law Firm also is the attorney for the Leland Yee Mayoral effort. It also served as the campaign attorney for Supervisor Sean Elsbernd.
At Tuesday’s Board meeting, Elsbernd’s effort will fail if it cannot muster eight votes. The most likely to vote against the measure are Supervisors David Campos, Eric Mar, John Avalos in a switch from last week, and either Jane Kim and/or Ross Mirkarimi, who missed last week’s vote and who Elsbernd hopes to convince to vote with him.
This Tuesday’s Board Meeting
The likely opponents to Elsbernd’s measure have signaled they want an alternative. Maine’s preferred alternative is being reviewed by some supervisors, and the original advocates for public finance are drafting options that they believe would meet the court’s test but still keep faith with the law’s intent.
Even if one of the alternatives could win eight votes, it could not immediately take effect. The Board was told that any change in the current proposal would have to return to Ethics for its vote, where it would again require at least four of five commissioners to support it. The suggestion was made that the Board and the Ethics Commission could act simultaneously.
The failure of the Ethics Commission to provide the due diligence required for such a significant issue could well serve as the explanation for returning the measure for the kind of in-depth study and public outreach that has taken place elsewhere.
Most Board members who spoke on the issue acknowledged that whatever happens now, the entire issue of the city’s campaign finance law needs to be revisited and likely revised. Unless the Board plans to go through an extensive outreach and public hearing process to write their own law, the city’s Ethics Commission will have to take the lead.
The entire issue has suddenly emerged as a flashpoint in the city’s politics, largely due to the strengthened hand of a coalition of groups intent on using millions of dollars to secure influence for the next four years. Whether supervisors vote for their favored approach, as carried by Elsbernd or take another direction will influence both how money is spent now and how individual supervisors fare with the voters.