The Education of Jerry Brown

Free Speech & Election Law Practice Group Newsletter - Volume 3, Issue 2, Summer 1999

October 1, 1999

Allison R. Hayward

Many readers may recall that populist gadfly and Mayor of Oakland, California Jerry Brown has claimed territory from time to time as a campaign reformer. During his colorful presidential campaign, he made a point of soliciting small contributions via a 1-800 number. Brown was not new to these issues—he ran for Governor of California on a reform platform which included the passage of the state's Political Reform Act.

So it was a surprise and a treat to see the Mayor in his recent appearance before the California Fair Political Practices Commission. The FPPC, as it is know, is the enforcement agency that interprets and implements major portions of California's election laws. Was Brown at the meeting to deliver a broadside about corruption in California? No . . . Was Brown presenting a welcome shot in the arm to staff and Commissioners? Not exactly.

Brown was, instead, pleading for an exception to a long-lived FPPC interpretation of the state's conflict of interest laws. That ruling prevents Brown from participating in Oakland redevelopment decisions, since he lives in a converted warehouse in downtown Oakland. Brown argued to the FPPC that since he was elected to bring economic growth to Oakland (specifically yuppies and coffeehouses, noted Brown) this regulation shouldn't apply to him. At least I think that's what he was requesting.

It would have been truly refreshing, and possibly even productive, for Brown to make the next logical step. He could have argued that California's complex and restrictive conflict of interest rules should be scaled back for ordinary elected officials, not just progressive mayors of East Bay cities whose motives are prima facie above reproach.

Compensating corporations for aircraft use—why is this so darn confusing?

The NRCC recently obtained an advisory opinion that clarified the regulation federal candidates and committees must follow when compensating corporations for use of private aircraft for political purposes. This Opinion, 1999-13, interpreted what is meant by a city served by regularly scheduled commercial air service, and verified both that the airport need not be in the city to serve the city, and that the corporate plane may use a smaller airport than the commercial one, but use the first class rate offered at the commercial airport.

Why is this important? If a city is served by regularly scheduled commercial service, then a corporation should be reimbursed at the first-class rate for candidates and those in the entourage. If not, then the campaign pays the charter rate for the plane. Pay the first-class rate when the charter rate is due, and the corporation makes an illegal corporate contribution to a federal campaign. The opinion stated in part:

"The regulation addresses a "city" as the travel destination for the campaign appearance or event, rather than restricting its terms to specific airports. This obviously contemplates situations, such as those you present, in which airports serve more than one city, or in which a particular city is served by more than one airport. The regulation could not reasonably be interpreted as requiring an airport to be within the corporate limits of a city in order for that city to be considered as being served by regularly scheduled commercial air service. The Commission agrees that it is reasonable to use published sources such as the FAA directory and the corporate directory in determining whether a particular city is so served."

What is amusing to the observer is the drastically disparate reactions from Commissioners and regulated persons about this Opinion. FECsters found the request uncontroversial, and were openly puzzled at why it was made. "Of course the airport serving the city need not be in the city" they seemed to say "and of course if you're traveling to that city it matters not if you use a smaller commuter airport in preference to the megaport that provides the commercial service." Commissioner Wold said almost as much in the public hearing.

Yet the very afternoon this Opinion was provided to the requester, that requester had a series of conversations with a corporate general counsel who was adamant that travel to the metropolitan Los Angeles area could not be reimbursed at the first class rate, because the travel was through the Torrance Airport, not LAX. Such well-meant but disparate interpretations of this regulation have been common. One hopes that this Opinion has added clarity to an unnecessarily complicated rule.

FEC Advisory Opinions Online

The Federal Election Commission recently posted its entire library of Advisory Opinions on its Web page (www.fec.gov). The library is searchable by keyword as well as by opinion number. No longer must candidates, staff, or attorneys rely on memory, old agenda packets, Westlaw or the quirky index provided with the CCH collection of Advisory Opinions. Now how about a sensible, freely available MUR index . ..?

* Ms. Hayward formerly practiced election law at Wiley, Rein & Fielding and served as legal counsel to the NRCC.