Carole Migden sues Fair Political Practices Commission

Sen. Carole Migden, seeking access to $647,000 in old campaign funds that were blocked by the Fair Political Practices Commission, has sued the FPPC in hopes of getting the money for her tough re-election campaign this year.

The money remains in the Friends of Carole Migden account from her successful 2004 Senate race. In discussions with Migden's attorneys last year, the FPPC said that about $1 million in the account was not eligible for the San Francisco Democrat's use in her current Senate re-election campaign. Migden's argument that the money predates the statute that would ban its use drew a sharp response from the chairman of the FPPC.

The incumbent Migden, who has been fined more than any other sitting senator in the state, is in the unusual position of facing multiple high-profile challengers in the Democratic primary. They include current Assemblyman Mark Leno, D-San Francisco, and Joe Nation, who termed out of a San Rafael Assembly seat in at the end of 2006. The Senate seat straddles both Assembly districts.

"The campaign mailings and other advertising that could be paid for with the $647,000 could well make the difference in the June primary election," states the 12-page lawsuit from the law firm of Remcho, Johansen & Purcell. The suit filed in U.S. District Court goes on to argue that bans on "intra-candidate transfers" are an unconstitutional violation of free speech.

"The surplus funds statute is unconstitutional," the lawsuit states. "It operates as an expenditure limitation that cannot be justified by any compelling state interest. Moreover, because it allows or disallows expenditure of campaign funds based solely on whether the candidate meets an arbitrary time deadline, the statute is not narrowly tailored, even if a compelling state interest were at stake."

"The fund Carole has are pre-Prop. 34 funds, which a candidate is explicitly allowed to transfer from account to account until they're gone," said James Harrison, an attorney with Remcho, Johansen & Purcell. "The law expressly states that these funds can be transferred from one account to the next until they are gone."

Harrison pointed to an April 2006 FPPC ruling that allowed Sen. Ellen Corbett, D-San Leandro, to access $97,851.43 in pre-Prop. 34 money left in her Assembly account.

"All Senator Migden is seeking here is to be treated the same as Senator Corbett," Harrison said.

The suit brought a sharp response from FPPC Chairman Ross Johnson, as well as from the Leno campaign.

"Senator Carole Migden wants to spend more than $1 million on her campaign that she's not legally entitled to spend; in fact, she's apparently already spent nearly $400,000," Johnson said in a statement. "Migden wants to bully the FPPC and distract our staff from their investigations into her campaigns. We intend to enforce the law; Senator Migden will not deter us."

"The fact that Senator Migden is suing the state's campaign finance watchdog to overturn provisions of Proposition 34, provisions that she fully voted for and supported in 2000, is outrageous," said Charles Sheehan, a spokesman for the Leno campaign. "How can she legitimately run in a Democratic primary as a ‘progressive candidate' when she is calling the state's campaign finance laws unconstitutional because she doesn't want to abide by them in the present, even though she voted to make them law in the past?"

Sheehan also pointed out that Migden has been fined by the FPPC more than any other sitting senator: $110,600. The fines came in 2002 and 2006 and related to her reporting of campaign contributions.  

Migden's suit argues that her use of the money would not violate the Political Reform Act or Proposition 34, a 2000 initiative on campaign contributions. The Friends of Carole Migden account was established in 2000, prior to the passage of Prop. 34, when Migden was looking at runs for both Senate and the Board of Equalization. It goes on to state that her campaign treasurer took the necessary steps to make sure the money could be used for either campaign. Migden was elected to the BOE in 2002 and served there until her election to the Senate in 2004.

Migden has suffered through a series of incidents in recent years that may have emboldened potential opponents. In 2005, she was caught pushing the "aye" button at the desk of Assemblyman Guy Houston, R-San Ramon, when one of her bills was up for a vote. Last May, several people called 911 to report her driving erratically shortly before she was in a car accident. She later said she was disoriented due to medication she was taking to treat leukemia, a condition she had not previously disclosed.

Contacted by phone, Nation said, "I have trust in the FPPC they'll do the right thing." He declined to comment further on the suit but said he was not running to take advantage of Migden's public relations troubles.

"I'm running because I think we need a different vision for this district," he said.

Both Nation and Leno have been circulating the results of recent polls. In January, Nation commissioned a poll of 400 likely voters that showed him in a statistical tie with Leno and Migden. After respondents were read statements about each candidate, Nation took a slight lead. Nation entered the race on Feb. 7, two days after voters rejected the Proposition 93 term limits change that would have allowed legislators to stay longer in their current houses.

Leno's polling shows him and Nation in a statistical dead heat, with Midgen at least 7 points behind. On Feb. 13, Leno secured the much-sought-after endorsement of San Francisco Mayor Gavin Newsom.

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