Blogger's Notes: Team Ose and some elected officeholders have gone to CRP Legal Counsel Chuck Bell, a noted Moderate to get a legal opinion in an effort to de-legitimize the Placer GOP endorsement of McClintock.

Tom Hudson sent the following e-mail to 200 county chairmen, treasurers and CRP officers that basically debunks any of the assertions Team Ose is making to the contrary.

This is Cross-Posted at the Placer CRA Blog and is posted with the express permission of Mr. Hudson.

Dear County Chairmen and Treasurers,

Recently, there has been a great deal of discussion about whether County Central Committees can or should endorse in primary elections. I have had several inquiries about this lately because the Placer County Republican Party has been working very aggressively to elect Senator Tom McClintock to Congress in the Fourth Congressional District. Unless your situation is like mine, I am certainly not suggesting that you or your Committee should take sides in a primary battle. However, in case you are interested in this subject, I am forwarding some comments that I made to a couple of County Chairmen:

Party Bylaws: The California Republican Party Bylaws have long prohibited local county Central Committees from making pre-primary endorsements. This prohibition was put in place at a time when state law explicitly prohibited such endorsements, so the Bylaws conformed to state law at that time. As explained below, the legal prohibition on pre-primary endorsements has been repealed and the relationship between the State Party and the local Central Committees has also evolved since then.

For an analogous situation, take a look at Article 2, Section 6(b) in the current California Constitution. It still says: "No political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office." It is right there in black and white. Every Central Committee that endorses non-partisan candidates is violating the plain language of the California Constitution (and we need not worry about doing so because that language itself is unconstitutional, and thus null and void).

Supreme Court Action: The major change in this controversial area came when the United States Supreme Court overturned California law and the California Constitution in a case known as Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, in 1989. (Do not be fooled by the legal citation: numerous Republican Central Committees participated as plaintiffs in this litigation, including the Alameda County Republican Central Committee, of which I later served as Chairman.) The case is all over the Internet, but here is one place you can read it for yourself:

http://supreme.justia.com/us/489/214/case.html

In a nutshell, the Supreme Court made it absolutely clear that Central Committees and their members have a First Amendment right to free speech and we can endorse whomever we please.

Legislative Reaction: The California Legislature responded to Eu v. San Francisco County Democratic Central Committee by repealing large sections of the California Elections Code. Senator Quentin Kopp was the author of a bill in 1993 and it was treated as an omnibus Elections Committee bill, which had no opposition inside or outside the Legislature. I have often spoken to staff members who handled that bill and the pro-freedom intent was clearly understood by everyone involved.

(As an example of the sweeping legislative change, there is no longer any reference to Central Committee membership dues, which was once set by state law as $24 per year. The Legislature repealed that section because everyone agreed that the Legislature had no constitutional authority to tell Central Committees what their dues should be. Ironically, several Republican activists around the state have incorrectly concluded that Central Committees cannot charge dues because that section of state law was repealed; they seem to think that we need permission from the Democratic majority in the Legislature to set our own internal dues, which is exactly the opposite of the position the courts have adopted.)

Party Reaction: Since the law changed, political parties have amended their internal rules to allow pre-primary endorsements. The California Republican Party has amended its Bylaws on a case-by-case basis so that, for example, the Party could officially endorse Dan Lungren and Arnold Schwarzenegger. Our Party has not categorically repealed the endorsement ban, as we logically should. It is very interesting that almost every time the State Central Committee has amended the rules to allow endorsements, they have only allowed themselves to endorse but have continued to prohibit local Central Committees from exercising that same First Amendment right. The only exception is in the section that I wrote myself (Section 3.02.02, subsection B), which deals with disloyalty in Legislative redistricting efforts.

There is a great deal more that could be said about this history, but for now I will just point out that the California Republican Party itself has made pre-primary endorsements over the years and so have various County Central Committees. Nothing disastrous has happened, although endorsements are always controversial.

Relationship Between State and Local Party Committees: It is critical to understand that local Republican County Central Committees are not mere units of the California Republican Party, like the chartered units of the California Republican Assembly. Instead, County Central Committees are separate, independent legal entities in every sense and they have been largely independent since they were first founded. Almost 100 years ago, County Central Committees became democratically elected bodies, while the State Central Committee is still an appointed body, with a few exceptions. While state and local central committees may share common goals, we do not share common operations, common membership, or common rules. We are not required to follow common procedures or particular campaign tactics and strategies to achieve our common goals.

Relationship as Defined in the State Bylaws: To reinforce what I just said, I should direct your attention to Section 1.03 of the current Standing Rules and Bylaws of the California Republican Party. I will reprint them below for your convenience. Please note this sentence in particular: "There is no affiliation relationship between the [State Central] Committee and such Republican county and district central committees." Here it is in context, with emphasis added:

"Section 1.03 Role And Relationship To County Central Committees and National Committees

The Committee is the official organization of the ballot qualified Republican Party, and exercises general direction over the statewide election campaigns for Republican nominees for state elective offices. The Committee works together with the local Republican county and district central committees, which are provided for in the California Elections Code and operate under their own bylaws and direction with respect to local election campaigns. There is no affiliation relationship between the Committee and such Republican county and district central committees in connection with federal election campaigns. The Committee and the Republican National Committee California Account, the National Republican Senatorial Committee California Victory Fund, and the National Republican Congressional Committee Non-federal Fund ( California ) are and shall be affiliates of the Committee as provided for in the California Government Code, Title 9, commencing with Section 81000 et seq."

Federal Ramifications of Affiliation: It is very important to understand that there are major ramifications if local County Central Committees are controlled by the California Republican Party as local affiliates of a single entity. Under federal campaign finance laws, for example, there are strict limits on campaign contributions to parties. In states where state and local party organizations are affiliated as a single entity, under common rules, the Federal Elections Commission has ruled that a donation to any local party committee counts toward the overall donation limit for that donor. Local parties are forced to coordinate very closely with each other and with the state party to avoid breaking the law by exceeding contribution limits.

By contrast, in California , our state and county parties operate independently under different rules. The Placer County Republican Party, the El Dorado County Republican Central Committee, and the California Republican Party are each a separate parties for purposes of federal contribution limits. When my Party received a donation from PG&E, for example, I did not have to worry about the fact that PG&E had given more than $10,000 to other Committees before giving anything to my Committee.

If the California Republican Party could control the operations of the Placer County Republican Party and supplant our local rules with the state rules, then it seems likely that we would be deemed to be a mere local affiliate of a unified political entity. That would mean that my Committee, your Committee, the State Central Committee, and all the other local party organizations would be subject to a single contribution limit (and thus, we are all criminals for exceeding that limit).

Given the controversy, why endorse? I understand that just because we have a constitutional right to do something does not automatically make it a good idea. We always need to act in the best interests of the Party. Endorsements are inherently divisive, so we need to think twice before we act.

In Placer County , the present circumstances heavily favor pre-primary endorsement. The June 3rd primary election is a unique, once-in-a-lifetime event for us. We have no president or statewide candidates on the ballot. Our Assemblyman and State Senator have no opposition at all, not even write-in candidates. We have no local ballot measures and no contested elections on the ballot, with the exception of the Fifth Supervisorial District (the smallest, least Republican part of our county). Our cities, school districts, and special districts are not holding elections until November. There are no local initiatives, no local bonds, no parcel taxes, no charter amendments. The two statewide initiatives both deal with the obscure and arcane subject of eminent domain reform. (I know: Yes on 98, No on 99!) The Fourth Congressional District primary, an open seat with nationwide attention, is the only game in town. Voter turnout is completely tied to the Congressional race because that is the only race where our votes will determine the outcome. Congress is the only thing that our volunteers, donors, and voters have any reason to care about. We ignore that race at our peril.

Fortunately, the Placer County Republican Party Bylaws allow the Central Committee to endorse by a two-thirds vote, so there was no procedural obstacle to prevent us from getting involved.

I realize that other counties have different rules and different circumstances. My point is just to explain our perspective on this controversial issue.

Yours for a Republican Majority,

Tom Hudson, Chairman Placer County Republican Party

P.S. These off-hand comments are not intended to serve as legal advice, but I should mention that I have worked as an elections attorney in private practice. I studied Election Law at UCLA under the first chairman of the Fair Political Practices Commission, who helped draft the Political Reform Act. I served as the Policy Consultant for the Elections Committee in the Senate Republican Caucus for several years in the California Legislature, etc.