HAVE SOME RED HERRINGS FOR BREAKFAST.


Since we’re often recruiting people with no previous experience in what we’re about, the danger of “a little knowledge” is always there.

Every few years, someone will come to one of the groups that I’ve sometimes worked with and make some assertion that we’re doing things wrong, or ask us to do something that we’re not meant to do.  It can really disrupt activity for a while as various people, with various bits of knowledge, go back & forth over it.  It normally happens once every few years because people need time to forget the earlier, usually simple, resolution of the question.
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(1)  No endorsement of nonpartisan candidates
by political parties:
“IT’S RIGHT THERE IN THE CONSTITUTION!”

Article II, Section 6 (b) of the California Constitution:

No political party or party central committee may endorse,
support, or oppose a candidate for nonpartisan office.
[as amended June 3, 1986.]

This bit of the California Constitution was added by Prop. 49 in 1986, but was since overturned in Federal District Court:

In California Democratic Party v. Lungren, N.D.Cal.1996, 919 F. Supp. 1397,

Article II, section 6(b) of the Constitution of the State
of California is hereby declared violative of the First and
Fourteenth  Amendments of the Constitution of the
United States.  Defendants, their officers, agents,
servants, employees, attorneys, and all persons acting
under, in concert with, or for them, are, and each is,
permanently enjoined from enforcing Article II,
section 6(b) of the Constitution of the State of California.

I.e., Telling a party that they cannot endorse a candidate is violating that party’s right to free speech (First Amendment of the U.S. Constitution), and the Fourteenth Amendment of the U.S. Constitution has been broadly interpreted to make the First Amendment apply to the states as well as the feds.  The federal constitution overrides the state constitutions.

Presented with this, someone might respond:

“If it’s not valid, why is it still printed in the Constitution?”

Read any copy of the U.S. Constitution.  The “three fifths” rule is still there in Article I, Section 2(3).  That’s the nature of legal publishing.  Everything is there, no matter how it has been superceded by later constitutions, laws, and court decisions.  It often takes considerable research to find out what still applies and what doesn’t.
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(2)  Endorse my candidate!

Once in a while, someone will show up at any and all meetings, of any and all groups available, expecting each group to consider endorsing a candidate for elected office.

If the members of that group have a clue, this is often not an option.  Depending on the group’s exact tax status, there are likely to be many restrictions on what it can do officially, as a group.

Let me spell this out carefully for the noobs:

You pay income tax in this country.  Certain amounts in the way of “gifts” are exempt from reporting for tax purposes.

If a group of people get together, appoint one of them a “treasurer”, pass the hat for donations, and give it to the treasurer to buy, say, web hosting, sign-making materials, rental on a venue, or whatever, if such a “gift” is over a certain amount, a donor might have to report it and pay tax for it.  This is no worry in the tiny amounts that most of my readers have dealt with, but we can dream of some day being big enough to have such worries.

On the other hand, if a certain kind of non-profit corporation is formed for the purpose, a donor could actually get a tax break for the gift.  This can encourage donations.

Also, there are limits on how much an individual can give to a political campaign.  If individuals can pool their donations into a corporation, they can have more impact, and even give larger amounts, subject to certain restrictions.

Above are three basic reasons that people form non-profit corporations.

See:

http://en.wikipedia.org/wiki/501(c)

http://en.wikipedia.org/wiki/527_organization

The most common of these corporations is the 501(c)3, which is very limited in what it can do of a “political” nature.  It cannot endorse candidates, for instance.

The exact nature of each of these kinds of org is a hairy subject.  Just be aware whenever talking to representatives of an org that they are probably under considerable restrictions on what they’re allowed to do.

There is a chance that the Citizens United v FEC decision, and whatever might follow it, could change all this, but that’s yet to be seen.  Unless a non-profit corporation is preparing for a court fight, it’s going to go by the old rules.

A political party, by the way, is a whole different animal by itself, not a 501(c) or 527.  Unlike a political party, a 501(c)3 has signed away part of its “free speech” rights in exchange for a special tax status.

If you’re talking to a coalition that includes a variety of orgs, the restrictions on that coalition will be those of the most restrictive of its member orgs.

Now, what MIGHT be appropriate is to go as a candidate to speak to a public meeting of an org or coalition, but not ask for any official support of your candidacy.  You can still make it clear that the individuals in that org are free to support you as individuals, but that is not the business of the org.  The nature of the meeting then becomes important.  Is it a meeting to do the official business of the org, or just a public gathering that they’re hosting?  All this needs to be clear before you decide how to present yourself.
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(3)  Pruneyard:  what it means, and what it doesn’t mean
Protip:  Nobody knows

Pruneyard Shopping Center v. Robins was a court decision in 1980 that applies only to California, and says that, in a sense, what one could normally do on public property, such as soliciting for a cause without special permission, can also be done on private property to which the public is normally invited.

People will occasionally cite this as a reason to feel free to bring a bullhorn, pass out flyers, do some street theater, or whatever, at a shopping mall and think they can’t be hassled by the owner of the property.

In fact, the Pruneyard decision has been modified quite a bit by later court decisions, and it’s always changing.  The owners of property can, at least, make “reasonable time, place, and manner” restrictions on what people do there in the way of First Amendment activities.  What the management, or a court, will consider “reasonable” is up in the air.

The bottom line is, if you want to do something on private property and are not preparing for a court fight, with all the preparation for getting arrested that that entails, talk to the management ahead of time.  They might try to impose rules on you that will make it pointless, and maybe your lawyer can talk them down from that.  On the other hand, they might be sympathetic to your cause and give you a break.  You simply don’t know without asking, and you’ll generally catch more flies with honey than with vinegar.  If you’re dealing with retail property, the obvious carrot and stick that you can present is the opinion your membership will have of the retailers.  Brag about the size of your mailing list.

Another way is to show up and start doing it, and see whether they tell you to leave, or threaten you with arrest, and just leave if you have to.  Some advance intelligence is useful for this approach, seeing how they could arrest you right off.

Another is to show up by surprise, get it done, and be gone before they think there’s any point in doing anything about you.  This depends on how fast you can get it done, and how innocuous your activity is.

Each situation is different.
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(4)  The Brown Act

Most of the groups with which I’ve dealt are very welcoming to anyone who wants to participate, with certain exceptions.  (See “Whom I Don’t Know“)

They try, within their limited means, to advertise meetings, with proposed agendas, to the public and encourage anyone interested to show up.

They very often don’t have much means for such things.  There is no paid staff to compile agendas and nag members to submit agenda items by a deadline.  There is no one being paid to constantly update a web site.  There are extremely limited means for advertising.  There is no money for renting public venues.

Given that, someone might show up who wonders why more isn’t being made public about the group’s processes.  Prominent people in the org might have a lot to do and little time for explaining things.  This can lead to noobs getting an “exclusion” vibe from them.

At some point, someone with “a little knowledge” might bring up the Brown Act as if it applies.  It very rarely applies.

For the uninitiated, see http://en.wikipedia.org/wiki/Brown_Act

The Brown Act, and its companion, the Bagley-Keene Act, together require that meetings of state agencies, legislative bodies, and local government bodies conduct their business in public.  It does NOT apply to political parties or the vast majority of non-profit corporations.  If a non-profit is in some way connected to a governmental body, it might apply.  I’ll let you research the details for yourself.  Most of my readers are not government officials, or in any functional way connected with the government.  Some day they might be, but let’s worry about the Brown Act when the time comes.

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3 Responses to HAVE SOME RED HERRINGS FOR BREAKFAST.

  1. kitchenmudge says:

    Charlotte Avant said…

    You are obviously getting a much more learned and enthusiastic new contact than most political groups. Very impressive, as is your comment.

    Originally Posted December 18, 2010 02:02 PM

  2. Pingback: “WHY DON’T THE GREENS… ” REPLANTED | kitchenmudge

  3. Pingback: “WHY DON’T THE GREENS… ” REPLANTED | kitchenmudge

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