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Tuesday, October 04, 2005 | A federal judge denied a local political club’s request that the city of San Diego’s restrictions barring businesses from combining money to spend independently on a city-sanctioned election be temporarily suspended during the upcoming mayoral runoff election.

At issue for the Lincoln Club of San Diego County – which represents the conservative and pro-business interests of its 320 members – is the city’s ban on businesses pooling money with the intention of spending the funds on a political candidate, albeit separate from the candidate’s campaign committee.

The club also wants to overturn the amount a group of individuals can spend independently, which is capped at $300 per person for the citywide offices of mayor and city attorney and $250 per person for City Council. The group views both restrictions as being unconstitutional.

Judge Larry Burns said that the attorneys for the Lincoln Club did not convince him to repeal a city ordinance regulating independent political expenditures because he was not sold that the club’s argument was likely to prevail or why the matter had to be determined so suddenly.

Although the Lincoln Club asked the City Attorney’s Office to address the club’s concerns to no avail in June, Burns said it was not apparent why the organization did not file suit sooner in light of the fact that the July 26 mayoral primary had been scheduled by then.

“The burden on the plaintiff is to show a likelihood of success of its merits,” Burns said.

Under the current San Diego law, a single individual or a single business may spend unlimited amounts of money independently.

The Lincoln Club alleges that prohibiting individuals from spending freely as a group and barring businesses from pooling funds independent of a candidate’s campaign violates the First Amendment freedoms of expression and association.

Deputy City Attorney Don Shanahan said that the city was not limiting individuals’ expression or right to assemble because the municipal government was not sanctioning how much money people could give the Lincoln Club to, in turn, be granted “speech by proxy,” nor was it prohibiting the group from recruiting more members so that it could spend more on elections.

John Ramirez, an attorney for Costa Mesa-based Rutan Tucker, who argued on behalf of the Lincoln Club, said that a recent Supreme Court decision that addressed aspects on the 2002 McCain-Feingold campaign finance upheld the new restrictions because supporters of the reforms were able to demonstrate through a legislative record how campaign contributions won supporters access to lawmakers.

Ramirez argued that the city’s restrictions could not be upheld without a similar legislative record for San Diego officials.

Campaign finance law experts said it is surprising that questions about expenditure restrictions such as San Diego’s have not been answered yet, and that that this case may be sent to higher appeals courts.

Daniel Lowenstein, a professor at the UCLA School of Law, said that there was no predictable answer to the Lincoln Club-city of San Diego dispute.

“A case of this sort could conceivably go all the way to the Supreme Court – and there are a lot of reasons why not – but nobody can give an authoritative answer on it,” Lowenstein said. “It is definitely one of the big unanswered questions as to whether a restriction like that is unconstitutional or not. You might think something as basic as this might have been resolved, but it hasn’t been.”

San Diego State University political scientist Brian Adams said he thinks that the courts would eventually overturn the rule.

“To my knowledge, there is no evidence that independent expenditures would lead to corruption,” Adams said. “The court will need compelling government interest to uphold. My guess is that the court will strike it down.”

Lowenstein said that the replacements for the late Chief Justice William Rehnquist and retired Justice Sandra Day O’Connor will play an integral part because the two former justices ruled differently on campaign finance cases. The Senate confirmed Judge John Roberts last week to serve as chief justice and, pending the upper chamber’s approval, White House Counsel Harriet Miers was nominated by President Bush Monday.

“The court could take a new direction on election law,” Lowenstein said.

Ramirez said that he would have to defer to his client whether the case will go forward after Monday’s judgment to deny the preliminary injunction. He did hint that the issue was still unresolved.

“Today was the end of the first inning of a three-inning game, if you will,” Ramirez said.

Chris Niemeyer, executive director for the local Lincoln Club, did not return phone calls by press time.

Please contact Evan McLaughlin directly at

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