How Fresno City Council candidates and sitting members raise money could be decided on Thursday

Texas court case may give guidance to Fresno City Council on how to deal with campaign contributions outside of campaign window.

Perhaps Nelson Esparza isn’t the essence of corruption in political campaign fundraising after all.

Perhaps Esparza is a martyr to political campaign fundraising smears.


I’m not saying either is necessarily the case. I am saying recent events are casting a new light on a long and bitter fight last year at Fresno City Hall involving Esparza’s campaign finances.

Thursday’s City Council meeting might see the resumption of that fight.

To back up a bit, Esparza is a candidate for the District 7 City Council seat. Incumbent Clint Olivier is termed out in January 2017.

It’s safe to say that Esparza is a part of the local political world that includes Council President Esmeralda Soria and 2016 mayoral candidate Henry R. Perea. It’s also safe to say that District 7 candidate Brian Whelan is part of the local political world that is anchored by Mayor Lee Brand.

The stakes are high in this race (they’re not the only candidates) because we’re talking about a potential shift in the ideological balance on the council dais.

Esparza in October was hit with a $500 fine by the City Council for campaign fundraising outside of the time window authorized by the City Charter. Charter Section 309 limits campaign solicitations and contributions to a period between the election filing date and the end of that calendar year.

The backstory of the Esparza Affair (my term) is convoluted. It’s enough here to note that Esparza, a member of the Fresno County Board of Education, was alleged to have moved about $5,000 from an old campaign account to his City Council campaign account outside the authorized time window.

Esparza’s supporters said he did nothing that hadn’t been done by other candidates for City Hall office, including Brand himself in the mayor’s race. The Brand team during the 2016 campaign said Brand’s fundraising decisions were fully vetted and approved by City Attorney Doug Sloan.

Bottom line: Esparza last fall signed a settlement with the city that required him to transfer about $5,000 back to the old campaign committee plus pay the $500 fine already mentioned. The settlement prohibited the parties from publicly discussing its terms.

That brings us to Thursday’s council meeting. The agenda’s consent calendar includes a proposed amendment to local law concerning campaign contributions.

The current law cites Charter Section 309 as authorizing the prohibition of contributions outside the time window. The proposed amendment says City Hall will not enforce such law.

If the proposed amendment is approved, the law would read: “Though Charter Section 309 limits campaign solicitations and contributions to a time window of the election filing date through the end of the calendar year, the city shall not enforce that provision. Candidates are not limited as to the timing of fundraising for city offices.”

What’s going on here?

Well, it turns out that controversies involving campaign fundraising and time windows aren’t limited to Fresno.

Donald Zimmerman, a former council member in Austin, Texas, some time ago fell afoul of that city’s campaign finance laws. Zimmerman went to court. He raised four objections, one of them concerning Austin’s “temporal” (time) restriction prohibiting all contributions before six months leading up to an election.

The district court as part of its decision struck down Austin’s temporal restriction. Austin officials appealed the entire decision to the U.S. Fifth Circuit Court of Appeals in New Orleans. The appellate court this month upheld the district court regarding the temporal restriction.

The two courts said Austin’s temporal restriction was an unconstitutional abridgment of First Amendment rights.

Shock waves from the appellate court’s decision are now hitting Fresno City Hall.

Set aside for a moment the impact this has on potential mud-slinging in the District 7 race. What’s interesting about the Fifth Circuit’s decision is its exploration of the “good government” logic behind a temporal restriction in campaign finance law.

A free society can find good reason to place limits on the amount of money an individual or a group can contribute per election to a particular candidate, the courts said. The idea behind a temporal restriction, they added, is that a contribution to the coffers of an incumbent running for re-election could turn into a bribe of sorts, a subtle request for a quid pro quo before an important vote.

Here’s a revealing part of the Fifth Circuit’s decision (the ellipses and [sic] are part of the decision):

“The district court found that Austin failed to produce sufficient evidence to justify the temporal limit. The only evidence presented on the connection between the timing of a contribution and corruption was the testimony of a former councilmember that ‘if we had money flowing through city hall … in a general way … it would really have a detriment [sic] to the people’s belief in council members making appropriate decisions,’ and the testimony of the city’s expert witness, a political scientist with expertise in campaign finance, that, in his opinion, the temporal limit ‘directly alleviated concerns of the appearance of quid pro quo corruption’ by ‘limit[ing] the period of time in which people could … reward candidates, particularly incumbent officeholders.’ He further noted that ‘before important votes, money flows in.’

“However, as the district court noted, there was also testimony that the Austin City Council is in session and voting year round, such that the risk of money coming in before votes is no less of a concern in the six-month window before an election than at any other time. Accordingly, evidence suggesting a perception of corruption arising from contributions made shortly before votes does not establish a perception of corruption arising from contributions made many months before an election. If a contribution of $350 or less immediately before a vote during the six months before an election will not result in either actual corruption or its appearance, there is no evidence showing that the same contribution made before a vote 12 months before an election would. Accordingly, we agree with the district court that Austin failed to produce sufficient evidence to justify the temporal limit.”

There’s a lot to chew on here for Fresno’s municipal politicians and voters.

For starters, I don’t see how the Fifth Circuit made the jump to assuming that Austin lawmakers believed that a campaign contribution made to an incumbent 12 months before an election was potentially corrupting but a contribution made to the same incumbent six months before an election wasn’t. Maybe Austin’s lawmakers created a temporal limit because they knew mankind is fundamentally flawed, money is an inevitable part of modern political campaigns, and the best we humans can do is lighten the pressure on the virtue of elected officials by coming up with an expedient.

And I can see how the death of Fresno’s temporal limit would make it even harder for challengers to unseat an incumbent mayor or an incumbent council member. According to a report from City Attorney Sloan (updated Feb. 8), city law limits campaign contributions per “person” to $4,400 and $8,800 per “small contributor committee” for each election. A first-term incumbent would have three-plus years of opportunity to maximize those limits from each supporter. Needless to say, those three-plus years would be full of important votes.

Even under the old rules, ousting a first-term incumbent from City Hall via contested election has been almost impossible. The only person I can think of who calls into this category is District 4’s Brad Castillo, who lost to Larry Westerlund in 2004.

Finally, there’s no guarantee that Fresno’s temporal limit is facing a permanent death. As Sloan said in his Feb. 8 report, “the City Attorney’s Office will not be enforcing the temporal provision, at least unless and until a court having jurisdiction over the City of Fresno holds to the contrary or the Zimmerman holding is reversed or overruled.”

There’s no guarantee on Thursday that the City Council will discuss the proposed amendment killing Fresno’s temporal limit. A council member would have to pull the item from the consent calendar for that to happen. Council members, always hunting for money for future races, would rather poke themselves in the eye with a sharp stick than publicly state their principles on campaign fundraising.

Then again, the ghost of the Nelson Esparza Affair will be in the Council Chamber. That might force the council’s hand.

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