Hey! You Can't Spend That... Okay, You Can Spend That!

By Shawn Carter

By now, many of you have heard the news...  

So now I'll tell you the story.

Allegheny County Court of Common Pleas Judge Joseph James denied Councilman William Peduto's petition for emergency injunctive relief for alleged violations of Chapter 198 of the Pittsburgh Code of Ordinances, "Campaign Finance Regulations."

You can read the Councilman's Petition here.

There was some confusion about the outcome due to the bifurcated nature of the Court proceedings.

Former Auditor General Jack Wagner's first argument was a limited attempt to get Judge James to allow him to spend the money he had left over from his gubernatorial run while keeping the individual and committee contribution limits in place.

That's simply a sound strategic play.  Try to free your cash, leave the limits in place.

Judge James was having none of it.  He initially ruled that under the Ordinance's contribution limits, the use of those dollars would constitute a "prohibited contribution."

Mr. Wagner's lawyers then said, "Well, we tried that, guess we'll have to blow up the Ordinance after all", and went with Plans B and C.

Plan B involved attacking the applicability of the individual and committee contribution limits on a different basis.  Mr. Wagner's attorneys argued that the contribution limits don't apply to Mayoral campaigns because of the wording of the Ordinance.

Both lead attorneys and even the Judge himself remarked that they would have written the Ordinance differently.  The judge was being kind.

See for yourself:

§198.02 Contribution Limitations

(1) No person shall make political contributions to a candidate per covered election that exceeds the following limitation:

Candidates for City Elected Office: $1,000

Candidates for Citywide Elected Office: $2,000

(2) No political committee shall make political contributions to a candidate per covered election  that exceed the following limitations:

Candidates for City Elected Office: $2,000

Candidates for Citywide Elected Office: $4,000

I highlighted the phrase "covered election" for a reason, see below...

§198.01 Definitions

COVERED ELECTION - Every primary, general or special election for City Elected Office.

And the definition for "City Elected Office" --

CITY ELECTED OFFICE - The offices of City Council.

Mr. Wagner's attorneys made a simple argument:  Since the contribution limits, based on the wording of §198.02(1) and (2) only apply contribution limitations to "covered elections", defined by the Ordinance at issue as elections for City Council, they do not apply to elections for Mayor or Controller.

Mr. Peduto's attorney neither disputed that argument, nor was he given the opportunity.

Because before Attorney Chuck Pascal could get a word in edgewise, Attorney Friedman unleashed a second salvo, which we'll call Plan C.

Plan C was a bit more guerilla warfare-like, in that Mr. Friedman introduced, as evidence, Mr. Peduto's own words.

You can read those words here.

Mr. Peduto, in his petition to the Board of Elections for relief earlier this year, posed several questions about deficiencies in Michael Lamb's 2012 Annual Report in addition to raising the possibility that Mr. Lamb, in making $52,000 in contributions to himself during the election cycle, may have triggered yet another provision under the Ordinance:

§198.02 Contribution Limitations

(6) The limitations imposed in this Chapter shall not apply to political contributions from a candidate’s personal resources to his or her own candidate political committee.  Candidates for City Elected Office or Citywide Elected Office shall declare their intention to contribute personal resources in an amount that exceeds $50,000 per election cycle upon becoming a candidate for a covered election.

(a) If a candidate for City Elected Office or Citywide Elected Office declares her or his intention to contribute personal resources in excess of $50,000 during the election cycle, the limitations imposed by this Chapter shall not apply to  be doubled for any candidate for that specific City Elected Office or Citywide Elected Office in that specific covered election, and all campaign finance in that specific City Elected Office or Citywide Elected Office in that specific covered election shall be governed by State Law.

(b) If a candidate for City Elected Office or Citywide Elected Office does not declare her or his intention to contribute personal resources in excess $50,000 during the election cycle, but actually does, at any time during the election cycle, contribute personal resources in excess of $50,000, the limitations imposed by this Chapter shall not apply to any candidate for that specific City Elected Office or Citywide Elected Office in that specific covered election, and all campaign finance in that specific City Elected Office or Citywide Elected Office in that specific covered election shall be governed by State Law.

It is currently referred to as the "millionaire's clause."  This clause is necessary to protect candidates who cannot and/or choose not to use their own personal resources to finance their campaigns from candidates who can and/or choose to spend their own money to finance their campaigns, placing their less-affluent counterparts at a significant disadvantage.

Mr. Friedman, having presented evidence to the Court of the existence of the "millionaire's clause" and evidence of Mr. Lamb's contributions in excess of the statutory limit, in Judge James' words, "obfuscated Petitioner's clear right to relief", the first prong of the five-part test.

Yes, Mr. Wagner beat Mr. Peduto by using Mr. Peduto's own document.

At that point, Judge James was left with little choice but to deny the requested relief and rule that the millionaire's clause had been triggered, and therefore all of the limits for all Mayoral candidates were eliminated for the primary election.

Questions certainly remain about the Ordinance's true validity.  Certainly one would not have expected Mr. Peduto to raise that issue, nor should he have.  Mr. Wagner chose to raise his attack on the Ordinance's language, not its validity, so questions about the validity of the Ordinance will have to remain for another day.

The one question that has been answered is that the limits do not apply for the 2013 Mayoral Primary.

The other very strong likelihood is, because of the way the Ordinance was worded, that the contribution limits do not apply to Mayor or Controller candidates, PERIOD.

The latter would be disturbing, particularly if I were a Member of Council or a candidate for the same.  The limits only apply to City Council.  And City Council voted for it.

And since having met Chuck Pascal, I have every confidence that he is an extremely competent lawyer, he almost certainly explained to Mr. Peduto that the most likely outcome of this Court date, in any case, was the voiding of the limits for the Mayoral election, I have to believe that the Judge's ruling came as no surprise.

Although, I must admit, for all their talk about laws and rules and the need to follow them, it almost always seems to be the rules and the law that trip progressives (or "so-called" progressives) up -- when forced to follow them in lieu of their convenient interpretations of them.

And do you now understand why Mayor Ravenstahl opted NOT to challenge the validity of the law himself?  Because he was the only candidate who, while following the limits as written, was STILL able to raise almost a million dollars, with 4 months left before the Primary.

Would you have?

And, by the way, were I a candidate for City Council at this point, I might explore §198.02(3).  

***UPDATE***  I forgot to mention that Judge James' ruling last week went down EXACTLY as Chris Potter, Editor of the Pittsburgh City Paper, said it would back in February.