Ted Smith, a resident and taxpayer in the City of San Jose, brought a taxpayer’s action against the City of San Jose and the San Jose Elections Commission, pursuant to California Code of Civil Procedure section 526a. Smith’s action challenged the City’s 17- and seven-day blackout periods on contributions made before a municipal and special election. Under San Jose Municipal Code (SJMC) sections 12.06.290 and 12.06.610, an individual cannot make a contribution during the last 17 days before a municipal election or the last seven days before a special election (“the blackout periods”). This ban on contributions also includes a ban on volunteer services under SJMC section 12.06.050(3).
The Honorable James Kleinberg ruled in Smith’s favor, holding that the blackout periods do not comport with the First Amendment’s guarantees of freedom of speech and political expression.
“This marks a critical victory in the history of San Jose’s political finance laws and reaffirms the individual’s right to engage in political expression. Further, it eliminates needless restrictions that do not serve a legitimate government interest and are not imposed by the federal government, the state or any other major California City,” said James McManis, who represented Smith and the head of McManis Faulkner.
In addition to McManis, the trial team included Partner Marwa Elzankaly and Associate Jennifer Murakami. The defendants were represented by the San Jose City Attorney’s office.
Smith challenged the blackout periods as an unconstitutional ban on the right to engage in political expression and an individual’s freedom of association. The City argued it had a legitimate government interest in promoting transparency and that the blackout periods allowed the City Clerk sufficient time to make public all contributions made to a political candidate before the date of an election. McManis Faulkner countered that the last few weeks of an election are a critical time when voters begin paying closer attention, last minute information begins to come out, and political candidates must be able to respond to final hour questions or attacks on their candidacy.
“The City, although restricting the right of a candidate to receive contributions during that period, eliminated any such restrictions on independent committees. Thus, an independent committee can freely fundraise and engage in political expression during that critical time, while a candidate’s hands are completely tied to be able to respond,” added McManis.
Moreover, McManis added that the City’s justification for the blackout periods was questionable given that the City Clerk testified that the City requires political candidates to post their own campaign contribution reports online through the City’s Netfile system, which allows candidates to instantaneously post contribution reports to the City’s website, making the information immediately available to the public.
McManis Faulkner also noted in its arguments that no other major City in California has such blackout periods. Instead, the Cities of San Francisco, San Diego, Sacramento, Los Angeles and Oakland follow California and federal law and permit contributions up until an election, but require candidates to file “late contribution reports” within 24 hours of receipt of a contribution during those last days before an election.
On August 16, the Court issued its final Statement of Decision, finding in favor of Smith. The Court agreed almost entirely with Smith’s arguments and held that the blackout periods “do not comport with the First Amendment’s guarantees of freedom of speech and political expression.”