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Gavin’$ Problem; M&R and the Politics of Outing

Feb19

Calbuzz has assiduously avoided writing about the race for (and machinations around) the office of Lieutenant Governor because we think  a) it’s a stupid statewide post that b) nobody cares about.

But while chatting with consultant Garry South about something else altogether, he mentioned that our old pal (and his former client) Prince Gavin Newsom of San Francisco could have some trouble if he decides to jump into the Gov Lite race.

South, a serious student of fund-raising rules in California, argued that under Fair Political Practices Commission regulations, as amended in 2000 by Prop. 34, Newsom’s major donors from the governor’s race – those who gave him anything more than the $6,500 limit in the LG’s race – cannot be tapped for more cash.

“They can’t give him another dime,” South insisted. “They’re maxed out.”

Of course, South is conflicted on this issue, since he’s now working for Lite Gov candidate Janice Hahn of the L.A. City Council, who, until Newsom started nosing around in the race, appeared to be facing only Kern County state Sen. Dean Florez for the Democratic nomination.

This isn’t about transferring money from one account to another, which Jerry Brown can do – making it possible for him to go back to the same people who gave him $6,500 for Attorney General and ask them for the difference up to $25,900, the maximum for a governor’s race.

We don’t recall a situation in California in which a candidate wipes out a governor’s campaign account and then wants trade down to another statewide office.

But Newsom friend and (for now) unpaid adviser Jason Kinney (South’s old ally and partner at California Strategies), says the Prince’s people have consulted with two different campaign law attorneys and have been told that Newsom can indeed go back to those maxed-out donors and get cash for a lite gov run – if he decides to file.

And Roman Porter, executive director of the FPPC, told Calbuzz he agrees with Kinney Newsom et al. The limits, he said, apply “per candidate, per election – it’s a separate election.” (BTW, Porter was actually at the hospital where his wife was in labor when he came to the phone to offer his perspective – way above and beyond the call of duty.)

Now, we’re not lawyers (we just pay them). But when we read the law (including the definition of a candidate) and when we think about it, South’s got a point. When you strip away all the parenthetical and qualifying clauses and update the dollar amounts the law says: Except a candidate for governor, a candidate for statewide elective office may not accept from a person any contribution totaling more than $6,500 per election.

 

If the law is designed to limit influence by a donor, why would it allow the donor to buy $25,900 in Gavin Newsom for Governor and then, when that collapses, another $6,500 in Gavin Newsom for Lieutenant Governor?

On the other hand, you can see why South would want to wipe out that $3 million funder base that Newsom tapped in his aborted governor’s campaign.

Injunction to follow.

In & out burger: Chroniclers Phil Matier and Andy Ross, the Butch and Sundance of California political reporters, fearlessly jumped off a journalistic cliff Sunday Feb. 7, when they identified as gay the federal judge now presiding over the volatile Prop. 8 case — Vaughn Walker.

A case study pitting an individual’s right to privacy versus the public’s right to know, the uncharacteristically nuanced M&R column stirred upset and concern in several quarters  – including their own newsroom. By outing Walker with their hetero-normative insensitivity, the argument went, the boys not only created an irrelevant distraction in the middle of the trial, but also handed gay marriage foes a handy argument to discount any trial rulings, or eventual decision, that undercut Prop. 8.

“What’s next?” one denizen of Fifth & Mission bitterly complained, “Tailing him to a bar? Peeking at his magazine subscriptions or his Netflix account?”

The thoughtful Brian Leubitz, who blogs about the trial at the Courage Campaign’s excellent Prop 8 Trial Tracker , argued the case against publicly disclosing Walker’s sexual orientation by raising this comparison:

So, did anybody comment about Justice Alito’s gender when he wrote the outrageous opinion in Ledbetter v Goodyear Tire that said that under the Civil Rights Act women could not sue after 180 days from the discriminatory decision, even if they didn’t know about the decision for years? The decision that ultimately spurred the passage of the Lilly Ledbetter Act because it was so egregious?

Breaking it down, Calbuzz sees three key questions:

1-Did M&R “out” Walker?

No. Our dictionary defines “outing” as “The exposing of one assumed to be, or wishing to be, considered heterosexual as being gay, lesbian, or bisexual.” Although he hasn’t advertised his sexual orientation, Walker by all accounts has made no secret of it, either.

Matier and Ross went out of their way not to out Walker, and their reporting showed pretty clearly that he didn’t feel outed: First, they called him up to ask him directly about his sexual orientation, to which he gave a “no comment.” Not long after, however, they received a call from another federal judge, described as a “friend (and) confidant” of Walker; this judge told them he had spoken to Walker, who was concerned that “people will come to the conclusion that (Walker) wants to conceal his sexuality.”

“He has a private life and he doesn’t conceal it, but doesn’t think it is relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions,” said the judge, who asked not to be identified because of the sensitive nature of the Prop. 8 trial.

“Is it newsworthy?” he said of Walker’s orientation, and laughed, “Yes.”

2-Is Walker’s sexual orientation a story? Yes.

The backgrounds of judges matters, and Walker’s is no less a story as Alito holding  membership in the Federalist Society, or Justice Sonia Sotomayor’s “wise Latina” speech. Walker clearly doesn’t hide his sexuality and, if he ends up overturning Prop. 8, its backers will use everything they can to challenge the legitimacy of his opinion in the appeal or the media, or both.

At that point, the Chronicle would find itself explaining why they didn’t report the fact in the first place, just as the Portland Oregonian did a disservice to readers in the 1990s by sitting on information about former Senator Bob Packwood sexually harassing a series of staffers, and then was caught out when the facts were disclosed by another news organization. Journalists are in the business of making information public, not withholding it, or calculating in advance the potential political impacts of publishing or not.

3-Does it make a difference to the case? It shouldn’t.

For starters, as state Senator Mark Leno pointed out to M&R, no one made an issue of the sexual orientation of members of the state Supreme Court when they heard the first challenge to Prop. 8. So why should Walker being gay matter any more or less?

Also, there’s plenty of evidence that the judge keeps his personal beliefs separate from his professional actions and values, and holds himself to the ethical standard famously compounded by the late Supreme Court Justice Felix Frankfurter:

As a member of this court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.

 

Walker was reviled in the gay community for years because he represented, as an attorney, the U.S. Olympic Committee when it won a case disallowing San Francisco’s Gay Olympics from using that name. In fact, as Chron editorial page editor John Diaz pointed out in a strong follow-up edit on Tuesday, there’s great irony in the suggestion that Walker is in the tank for the gay community:

Vaughn Walker almost lost his chance to reach the federal bench because of claims that he was anti-gay and hostile to civil rights. Two dozen House Democrats, led by Rep. Nancy Pelosi of San Francisco, opposed his nomination because of his alleged “insensitivity” to gays and the poor. His first appointment, from President Ronald Reagan in 1987, stalled out in the Senate Judiciary Committee…Back then, Walker struggled to assure skeptical liberals that, as a judge, he could rule with impartiality…

Bottom line: Chronicle editors made the right call in publishing the M&R column as is, and in doing so followed the most fundamental principle of the Code of Ethics of the Society of Professional Journalists:

Journalists should be free of obligation to any interest other than the public’s right to know.

Press Clips: Nice work by Jackson West at NBC Bay Area in shedding light on eMeg Whitman’s claims about layoffs during her tenure at eBay…High Concept of the Week, from Steven Pearlstein in the Washpost: Obama should show some leadership…High Concept II, from Alan Mutter: journalists should get paid.

Today’s sign the end of civilization is near: It’s open season on Smokey the Bear.


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