To an observer with little to no training in the legal realm, the hours of dialogue leading up to St. Pete City Council's passage of strict limits on outside money in local elections were quite... lawyerly.
The debate that unfolded dealt largely with the question of which court decision would determine the outcome of what case would determine the fate of St. Pete's ordinance were the city to be sued — and how much money the city would have to spend defending itself in such a lawsuit.
A few of the basics about the ordinance: It aims to limit expenditures from political action committees (PACs) to $5,000, as well as prohibiting large contributions from super PACs and foreign entities. The aim is to keep monied interest from tipping the scales in local elections. A majority of councilmembers agree that what's currently going on in the city's mayoral race between incumbent Mayor Rick Kriseman and former Mayor Rick Baker (in which both candidates enjoy assistance from PACs, though Baker's dwarfs that of Kriseman) doesn't bode well for the future of St. Pete politics.
The city attorney's office, meanwhile, advised against the measure out of concern that it would open up the city to pricey lawsuits. After all, the U.S. Supreme Court has already determined that money equals speech. But proponents of the law — some of them constitutional law scholars — believe that even if someone were to sue, the city would prevail.
But one of the ordinance's biggest champions, St. Petersburg City Council Chair Darden Rice, said there's too much focus on a potential lawsuit, which has led to misconceptions about the intent of the ordinance and what it does.
CL recently spoke with Rice about the new rules and why she thought it was important for the city to pass them.
Talk about the ordinance and what it does.
The St. Pete ordinance bans super PAC money and foreign corporate money in elections. And we limit PAC contributions to $5,000. And we think our ordinance is consistent with Supreme Court precedent and the Constitution. This is about rebalancing scales through contribution limits. Right now, it takes a high-profile candidate one phone call to raise $25,000 or $50,000 from a super PAC. It takes me, as a relatively well-known incumbent, several weeks to raise that same amount from voters. It takes a new person stepping into public service probably several months. In a local election, at its best, it's about well-informed, everyday citizens stepping up to public service. So if money is speech, then let the money be disclosed and let the money be the voice of our everyday residents and businesses who support our everyday leaders.
Whose idea was it? Can you explain why you went against the of advice of the city attorney in this decision?
I was the president of the League of Women Voters for several years, so campaign finance reform and fair voting laws are near and dear to me. There's just some issue you pick that's going to be the hill you're going to die on. I had tried, in the past, a couple of bites at the apple, of campaign finance reform. I tried to limit our contributions from $1,000, to take it back down to $500 and it did not prevail. And one of my colleagues said, "well, what's the point of doing this if someone can raise unlimited super PAC money anyway?" So I thought, hmmmm. We worked on a Move to Amend resolution a couple years ago... And resolutions are a great way to raise attention, but they have no teeth. They don't actually do anything. But we followed up on the work on the resolution and we got with Free Speech Now to present a draft ordinance that's been looked at by a number of national constitutional and election law attorneys, and that got us to how we started working with Jon Bonifaz and Free Speech Now on the ordinance that was passed [on Oct. 5].
Anyone who watched the discussions that led up to the vote saw City Attorney Joe Patner advising against this ordinance. What was behind the council's decision to not take his advice?
I have the utmost respect for our city attorneys, especially Joe Patner. Joe Patner, his number one job is to prevent the city from being sued. He does a good job and our citizens should feel very lucky and fortunate that we have some high-caliber attorneys. That being said, this ordinance challenges the status quo. And any time you challenge the status quo, you're going to get pushback. It's not meant to cast dispersions on anyone. It's just the nature of the beast; when you challenge the status quo, everybody comes back against you to tell you why you can't do it. Fortunately, at least six of us city councilmembers decided to make a different decision. We involved some of the top constitutional and election law leaders and we involved Laurence Tribe, who wrote the textbook on American constitutional law.... He has taught constitutional law to people who have become Supreme Court judges. He taught Obama. He wrote the textbook on American constitutional law. We brought in Federal Elections Commissioner Ellen Weintraub. We brought in some very esteemed people. And unfortunately, it may have come off that we were bringing in outsiders who looked down on us and it wasn't the case at all. Out group of people offered to work constructively and cooperatively with us and our staff, at every single turn. This isn't about pedigree. This isn't about whether someone has a law degree from Harvard or UF. It's about what's your experience with constitutional and election law. I don't expect our local attorneys to have that kind of expertise. But we were responsible in engaging the people who do, and that deserves some respect.
So what do you think are the biggest misconceptions among members of the public?
Number one, people are interpreting this as a direct hit against Citizens United. This ordinance does not attempt to change that money is ruled as free speech. I think that's a misperception. Our ordinance tugs at the threads of the foreign money loophole that was created by Citizens United. But our ordinance is constitutional and we are tugging at those loose threads by putting on the breaks, but we are working within the confines of present constitutional law to do it. Citizens United has very loose language. It's language that can mislead the lower courts. This happened in the DC circuit. But St. Pete, we're in the 11th Circuit, and the 11th Circuit and the Florida Supreme Court have not decided this issue or looked at it in this way. Citizens United created a loophole in which long prohibited foreign national money can circumnavigate that ban by letting that money get laundered through, in a corporate form, to a super PAC. Now, the Federal Election Commission has not been into a position to enforce this. They are deadlocked because the commission is made up of six commissioners and it's a partisan deadlock of three to three. So this leads local communities like St. Pete to step up and close the loophole ourselves to protect our own local elections through local ordinances. And, yes, it tugs at the loose threads of the foreign money loophole in Citizens United, but we do it in a way that's carefully crafted to do what we think ...is in a way that will be upheld as constitutional.
Are you confident that the city will have help from supporters in defending this in court?
I take this issue — the issue of prevailing party cost and the cost to the city — very seriously. We are going into full swing very quickly, especially as soon as it gets challenged. Right now, people don't want to donate to a “what if” campaign. But we have large organizations, nonprofit advocacy groups behind us, and nationally high-profile people behind us, and we know that we can raise the money to offset costs, and we knew that we could also, from the very beginning, offer assistance to the city with pro bono legal work as well. Our attorneys who are opposed to this estimate the highest cost for prevailing party cost to be $2 million. We've heard other estimates that are more like $400,000. But let's be conservative and assume, let's take the highest number. That would be easy to raise as part of a national campaign, because people feel so strongly about getting big money out of elections, and if you look at the zeitgeist of the people behind Bernie Sanders — his platform of fighting big money in elections really drew so many people, and so many young people — we know that we can tap into that, and so I don't want to make it seem that this is something easy; that we are underestimating. We're taking it very seriously, and I think raising the money is definitely doable.
Why St. Pete?
St. Pete stood out when we passed the Move to Amend resolution... And without some city, somewhere, like St. Pete that would sow commonsense leadership to hit the brakes on super PAC money in elections, there will be an inescapable future of candidates and referendums that dominate local elections because of the backing of super PACs linked to wealthy individuals and influences. We've already seen how big money affects federal and state elections, and the corruption we see there. Why wait for it to come to the doorstep of St. Petersburg?”
Why do you think some people's concerns about a potential lawsuit are misplaced?
What about getting angry over those who would sue us in the first place? Instead of getting mad at councilmembers who are trying to do the right thing? What about getting angry at the agenda behind those who would sue to stop us? Why would anyone find it in their interest to stop St. Pete's actions to curb this money? Why are the powers that be so invested in protecting such an awful status quo? That's the question.