By Russ Howard  
http://www.CACDefenseFund.org
(coming soon)

Contents:
1. Introduction
2. Background
3. Political "Reform" and Freedom of Expression
4. Court Actions
5. Conclusion
6. How you can help

1. INTRODUCTION

I write on behalf of political freedom and on behalf of Steve Cicero and myself, longtime activists for constitutional liberty, about our legal struggle with the Fair Political Practices Commission, the agency that enforces California's campaign finance disclosure law. It is a story of petty bureaucratic tyranny and political retribution; moral, legal, and judicial atrocities; and laws abused and broken by those sworn to uphold them; all related to what is reportedly the largest political disclosure fine ever issued in America. At a 1995 hearing, the FPPC fined us $808,000 in absentia for shielding donors from harassment during a 1994 campaign against former Senate President David Roberti, coauthor of the Roos-Roberti Assault Weapon Ban. The Roberti Recall, California's first legislative recall to qualify since 1914, drove Roberti from office by draining his financial and political capital.

We're currently seeking support in the form of funding, amicus briefs, pro bono legal research, and perhaps additional or substitute representation by a public interest law firm. Those familiar with the case may wish to skip to Section 3. Donation information is at the end.

2. BACKGROUND

Self-defense civil rights activists will long remember 1989, when a sensationalist media joined publicity-hungry politicians to turn California's Stockton schoolyard killings into national hysteria. Roberti and Assembly Speaker Pro Tem Roos enacted the first in a wave of state & federal "assault weapon" bans, and though it passed by just one vote in the Assembly, gloated over vanquishing the "once-powerful gun lobby".

Enemies of the Constitution had learned from tackling too much with Prop 15, California's failed 1982 handgun ban. Adopting more flexible, incremental tactics, they waited like jackals to exploit disasters like Stockton. Roos-Roberti divided & conquered, isolating "extremists" from "legitimate" owners of "sporting guns". And it banned a style, "military-style", facilitating arbitrary, subjective additions to the ban. It was a fraud, whipping up fear of semi-autos by mislabeling them "assault weapons" (i.e., machine guns) and calling them "the drug dealers' weapon of choice". A study by AG Van De Kamp was buried when it showed that such firearms were involved in only about 1% of crimes.

In their arrogance, Roos & Roberti poked the hive too hard, and dozens of newly hatched grassroots groups emerged in defense. Among them, Californians Against Corruption ousted corrupt legislators who violate their oath to defend the Constitution. Led by founders Rick Carone, Jerry Allen, Bill Dominguez, and others, CAC's wildcat re-mail campaign against Roos exposed a $50,000 bribe disguised as investment profits. CAC's creative approach to directing grassroots resources involved a campaign letter and voter labels, mailed to volunteers in all 50 states, who had pre-committed to copy, fold, stuff, stamp and "re-mail" into a district, at their own expense, enabling direct mail on a shoestring budget. The re-mail campaign, along with subsequent recall moves, precipitated Roos' 1990 resignation. I was a volunteer in that campaign.

In 1991, I was invited into CAC leadership. In 1992, I resigned as Director of Research for the Prop 174 school voucher initiative to free up time to help organize efforts to oust Roberti. Due to redistricting, Roberti had abandoned Hollywood for a special election in heavily Democratic Van Nuys. Pundits predicted a cake walk, but he survived our surprise re-mail campaigns only by spending an astounding $2,500,000 and damaging relations with his party, since most of the money should've gone to other Democratic campaigns. Like sunlight through a magnifying glass, our technique was to relentlessly focus limited and otherwise relatively dispersed and thus harmless grassroots resources on a single target, holding the focus long enough to burn. In fundraising letters and strategy papers, we repeatedly stated our minimum goals: Empty Roberti's warchest, weaken and eventually destroy him, send a message to other corrupt politicians.

From 93-94, as CAC Executive Director & Treasurer, I organized and directed a coalition of gun rights, tax limitation, law enforcement, good government, and victims rights groups, most of which I had worked with on other campaigns, to qualify our first legislative recall in 80 years. Groups included People's Advocate, Law Enforcement Alliance of America, Operation Slush Fund, Citizens for Law & Order, and the Doris Tate Crime Victims Bureau. Each had its reasons for ousting a politician whose 28-year tenure had been an overall disaster for the state. Roberti was a soft-on-crime, tax-&-spend, big-government statist presiding over the most corrupt senate in memory. Three of his key lieutenants were convicted of racketeering. Roberti, a consummate insider, claimed he knew nothing about it. Nevertheless, with help from a self-serving loose cannon in one of the gun rights groups, the press painted the coalition as strictly a "front for the gun lobby", partially fracturing the coalition and weakening the campaign.

Still, the Coalition for Government Integrity made Roberti a liability. Dems no longer trusted him with purse strings, and he resigned his presidency. Even so, he still outspent us 10-1 (not counting "volunteers" bussed from the capitol, etc.). With that and the usual election fraud, we lost by 9%. But Roberti was running for treasurer and the primary was just 6 weeks away. It was too much. On losing, he grumbled that the "gun lobby" had ended his career by exhausting his resources. We had succeeded, and for several years, it paid off. Predictably, as legislators became 'gun shy', a torrent of gun bills slowed to a trickle and stopped. But legislators didn't like the idea of uppity grassroots groups making trouble for them, so they moved to restrict recalls. And before it was over, Roberti, once our most powerful legislator, got revenge.

During the petition campaign, our signature-gathering firm had abandoned us mid-drive, claiming Roberti had offered the proverbial deal they couldn't refuse. Our recall strategy document was leaked to the media, which vilified us as "extremists" and began printing donor names. CAC was burglarized. The home of Recall Chairman Bill Dominguez, a collector of antique and modern firearms, was also burglarized. Bill never told the press, yet within hours Roberti's campaign was gloating that an "arsenal" had been stolen (oddly, no guns in this "arsenal" ever surfaced). I got death threats and photocopies of swastikas in the mail. CAC's Chairman and his wife received lewd, threatening calls. Donors complained of harassment.

As Senate President, Roberti had power to influence legislation, the judiciary, police agencies, regulators, and private employers. Donors were vulnerable to retribution. Some even worried about ending up on lists of suspected Roos-Roberti violators. Consequently, I temporarily stopped identifying donors in campaign finance reports, while still providing each donation amount, balancing the need to protect donors on the one hand, with the spirit of California's disclosure law on the other.

When Roberti was out of power and the danger seemed over, I turned in everything requested and told the FPPC of the harassment. The Supreme Court has repeatedly held (see below) that disclosure must be waived in such conditions.

But for years the FPPC had already singled us out for harassment, threatening to prosecute and fine us unless we provided our home addresses and phone numbers, and unless we accounted for the efforts of our volunteer re-mailers as in-kind donations. In fact, CAC had been continuously investigated and harassed by the FPPC since its founding. We told the FPPC as early as mid-1992 that we were worried about the real possibility of retribution and harassment from various sources, including the FPPC itself, so we had no intention of giving out home addresses and phone numbers. Moreover after we mailed re-mail packages to volunteers, the re-mail effectively became their independent expenditures, and we had no practical or accurate way of valuing their efforts. We had no idea what their labor was worth, what they paid for copies, or whether they even went through with the mailing. In 1992, we threatened to sue for violations of our civil rights if the FPPC kept harassing us, and they backed off.

Notwithstanding that, on November 2nd, 1995, the FPPC issued the largest disclosure fine ever, trumping up hundreds of violations from what was effectively a late report, the maximum penalty for which would've been $10 per day. They imposed separate, maximum fines multiple times for each donor, as if the withholding were permanent: $2,000 per name, per address, per employer, and per occupation. The day they fined us $808,000 for protecting grassroots donors from harassment, they fined the San Francisco 49ers $60,000 for money laundering.

The FPPC misrepresented my actions, claiming I had shown no good faith. In fact, the reason my fine is so draconian is because I acted in good faith and reported as much as I could. Had I not originally reported donation amounts, then cooperated with an audit and turned in everything they asked for, they would not have known how much to fine me. Had I given them no information at all, then filed a report on the audit date, it would've been a late filing with a small fine or none at all. Far from punished for not cooperating at all, we were punished for cooperating as much as we could. In lying about my actions and failing to credit good faith and eventual full compliance, the FPPC violated the very act it exists to enforce.

At one point, we intended to make Steve Cicero treasurer, and notified the FPPC. We had jumped the gun. I never resigned, and we did not correct the error until the campaign was over. I told the FPPC that the alleged acts were mine alone, yet they held us jointly liable, as if we were both the official treasurer simultaneously. The FPPC falsely swore we were served with notice. Last I checked, that's a crime, yet who will punish them? As the Roman satirist Juvenal asked nearly 2,000 years ago: Who shall guard the guards?

Imagine a meter maid gives you an $808,000 parking ticket, perhaps equal to all the property you'll ever own or disposable income you'll ever earn. He then falsely swears he served notice of your 'right' – not to a jury trial – but to a kangaroo hearing, and not before a judge – a "right" we have even on $10 tickets – but before the officer himself, who serves as judge, jury & executioner. Having never been served, you "fail" to appear. Other than that, your only 'trial' is in the press. He then issues the largest ticket in history by "default" and sues to collect, even though it turns out the Supreme Court had already said you could park there to protect free speech. Surely this violates something among the 1^st, 5^th, 7^th, 8^th, 9^th, and 14^th Amendments and the California Constitution's "right" to privacy. If they can get away with this, then let's stop kidding ourselves. You have no rights the state doesn't want you to have, nor any reasonable assurance of justice unless you're lucky, wealthy, or connected.

3. POLITICAL "REFORM" AND FREEDOM OF EXPRESSION

This fine has the effect of suppressing grassroots campaigns against powerful incumbents, abusing a political regulatory system to ends unintended by the law that enables it. That law, with its unfair enforcement, violates freedom of expression and association.

California's Political Reform Act established the FPPC to force public disclosure of political activities previously exercisable anonymously. It was supposed to level the playing field against powerful incumbents and special interests. The theory is, if voters know who gets special interest money, they'll vote for the challenger.

The reality is, very few voters pay attention to campaign donations, and elections are bought & paid for as much as ever. Now, however, participants in the political process must navigate complex legal minefields, publicly report donors, and detail activities on time-consuming forms. No problem for powerful incumbents and special interests, which can afford full-time professionals and will always find (or make) loopholes to do whatever they want. The cost is borne by grassroots groups and underdog challengers.

The folks who do pay attention to campaign finance details are those with the power to punish donors who oppose them. Pre-PRA, anonymity shielded donors from incumbents' power to influence legislation, police agencies, regulators, employers, and the judiciary. Post-PRA, incumbents could dry up opposition funding by actual or implied threat of retribution. Government employees or contractors, for example, may no longer be able to risk helping a challenger. Far from leveling the field, the PRA steepened it.

The potential for 1st Amendment suppression can be seen in www.OpenSecrets.org, where anyone can look up your donations. Imagine your boss has very different opinions from yours. With a mouse click he can find out your political beliefs and proceed to destroy your career. To avoid a lawsuit, he never reveals the real reason you no longer get promotions, or why you're terminated. He just finds fault elsewhere. Once people learn how public their donations really are, many will feel forced to withhold them. In short, forced disclosure enables the powerful to oppress the powerless, and transforms political involvement from a right into a privilege.

In Buckley v. Valeo (1976) the Supreme Court called for waiving disclosure under "reasonable probability [of] threats, harassment, or reprisals from…Government officials or private parties… [H]arassment of members…or…the organization itself... A pattern of threats or…public hostility... [R]eprisals and threats…against individuals or organizations holding similar views." In Brown v. Socialist Workers Party (1982), the Court forbade forced disclosure that would subject donors to "the reasonable probability of threats, harassment, or reprisals..." Analogously, McIntyre v. Ohio Elections Cmn (1995) held that prohibiting distribution of anonymous campaign literature abridges freedom of speech.

4. COURT ACTIONS

The FPPC quickly moved to convert the fine to civil judgment. Our first attorney, acting through the Institute for Constitutional Rights (now defunct), cross complained with a petition for writ of mandate. Our arguments are primarily based on grounds of due process (including lack of jurisdiction), 1st Amendment, 8th Amendment/excessive fines, and equal protection. The intent is to also raise the California Constitution's right to privacy. Not long after the cross complaint was filed, John W. Howard of ICR (no relation) became attorney of record.

About that time, I flew to Sacramento and researched the FPPC case of former Assemblyman Paul Horcher, whose fine was quashed because the issuing officers were improperly appointed. We seem to have stronger 'Horcher' grounds than Horcher himself had.

Moreover, the commission was improperly constituted, due to vacancies throughout the period in question that were longer than the 30-day maximum. (The PRA has checks & balances: Various state officers appoint 5 commissioners, no more than 3 from one political party. The FPPC may act during vacancies, which may not exceed 30 days. While not explicit, the logical intent is that it may only continue to act during the 30-day maximum period, else the checks are meaningless and easily defeated by never reappointing, say, Republicans. I.e., as long as there were 3 for a quorum, it could be a 100% Democrat commission indefinitely.)

The FPPC failed to attend every court hearing with impunity. (No "default" judgments against them! Of course, had we failed to appear, our case would've been dismissed and John sanctioned.) Then they seemed to forget about the case. But now it seems as though they were intentionally playing dead.

This year, after 3 years, they reactivated. John filed to dismiss for lack of prosecution, and they filed to dismiss our writ for same. Who dropped the ball 3 years earlier was central. Incredibly, the FPPC cited a special deal the courts are supposed to give government agencies, where they merely have to claim high workload and inadequate resources – as opposed to the presumably unlimited resources of citizen defendants. The judge denied our motion and granted theirs, seeming to rule reflexively for the FPPC. At one point, he simply said he disagreed with our position, without offering any legal grounds. Then he put the case back on calendar to be reassigned to new judge.

Then, by chance, John learned the judge was former Assemblyman Lloyd Connelly, of the Connelly Ban on private gun transfers, who along with Roberti & Roos was one of our 3 top anti-self-defense legislators when CAC was founded. His conflicts of interest are extensive. For example, Roberti, Roos & Connelly collaborated on bills and donated to each other's campaigns, Roberti hired Connelly's law firm, and Connelly was on our list of politicians to oust. Yet he failed to recuse or even disclose. Throwing the case back on calendar cut the risk we'd ever find out, making it seem like a hit & run. We filed a motion to vacate his orders, and he denied it, so we re-filed it (hearing pending) with another judge. I'm preparing a judicial ethics complaint.

5. CONCLUSION

Any support for fighting this atrocity is deeply appreciated. It seems like a cross between Les Miserables (years pass, we think we're in the clear, then the inspector finds us), and The Trial - arrested, processed, tried, convicted, and executed "without having done anything truly wrong", and without knowing the charges. We know our official charges, but I believe our real 'crimes' have not been disclosed – on more than one level.

On talking with experienced campaign treasurers, it turns out that with more expertise, we could've withheld all the information and yet received no fine at all, if only we'd known the magic excuse to put on the form. But we had no money for professional consultants.

Still, we didn't do anything truly wrong – Steve Cicero didn't do anything at all – and we don't deserve to wear this around our necks forever. Shielding donors was the right thing to do, though I'd have done it differently had I been a professional operative. So little privacy left in a country founded on freedom, in a state where privacy is "guaranteed". Our main goal is to quash the fine. Yet, maybe there's a chance to strike a blow, however small, for privacy, freedom of association, freedom of political expression, and the Constitution.

Fair Political Practices Commission? Hardly. For protecting free speech within the spirit of Supreme Court decisions, they fined us hundreds of times more than they would've fined someone who withheld all information on the same number of donors for the same period, and 13 times more than they fined a professional football team for money laundering, selectively suppressing dissent against grassroots. The real reason for this fine is not what we did, but who we are, what we believe, and whom we ousted. We have little political power, we're associated with increasingly vilified political beliefs – constitutional liberty and the right to arms – and we spent years ousting the state's most powerful legislators.

The Barbary Pirates exacted tribute from European powers too busy fighting each other to crush them. It was tolerated until the fledgling U.S. sent out a tiny fleet under Stephen Decatur. Sinking ships forced the pirate leaders to terms, yet one of them sought to save face by demanding two bags of gunpowder as tribute. Decatur's reply: "If you want powder, you'll have to take our balls with it". The FPPC is a political pirate, and I'd rather become a political prisoner than pay them tribute for my freedom.

In Liberty,

Russ Howard
CACDefenseFund@netzero.net

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