A federal appeals court on Wednesday overturned a 1970s-era ban on local government employees directly seeking political contributions from each other, spurred by a group of South Bay public defenders who sued the state while supporting a colleague’s run for Santa Clara County district attorney.
At issue was a law signed by then-Gov. Jerry Brown in 1976 that became Section 3205 and relaxed rules on state employees turning to each other for political support, fundraising and otherwise, but preserved restrictions for public workers at county and municipal levels. Wednesday’s written decision by the 9th Circuit Court of Appeals, which declared Section 3205 unconstitutional, recalled how even Brown’s own staff questioned the law’s soundness before he enacted it.
Judge Martha Berzon, writing for the three-judge panel that reviewed the legal challenge, rejected arguments from state Attorney General Rob Bonta’s office that the two-tiered rules were necessary to prevent coercion and corruption, and that uniform, statewide oversight over state workers justified the additional level of scrutiny for county and local employees.
“We do not doubt the State’s interests in combatting corruption and worker coercion. But we cannot, applying First Amendment precepts, countenance California’s ‘second-class treatment’ of local employees, absent any plausible reason for the distinction,” Berzon wrote.
Judge Sandra Ikuta wrote a concurring opinion that also criticized the rationale presented by Bonta’s attorneys, stating: “California presents no evidence that state employees’ solicitation of political donations from their co-workers has resulted in corruption, cronyism, or workplace coercion. Thus, California’s fear, absent any factual support, is the type of ‘mere conjecture’ that the (U.S.) Supreme Court has held is not ‘adequate to carry a First Amendment burden.’ ”
Judge Ronald Gould was the final member of the judicial panel behind Wednesday’s ruling.
Bonta’s office has not signaled whether it will file an appeal, which would have to be submitted to the U.S. Supreme Court. In response to an inquiry from this news organization, the office said in a statement, “We received and are reviewing the opinion. We will allow our briefs to speak for themselves.”
Presuming the circuit court’s decision stands, local government workers would likely be governed by the same rules as state employees, which include prohibitions against political solicitation during work hours and citing one’s work title or rank in those communications.
More than 1 million local government employees would be affected by the court’s ruling, according to Berzon’s decision. The ruling reverses U.S. District Judge Haywood Gilliam Jr.’s decision to uphold the political solicitation ban in 2021, when the initial lawsuit was filed by Santa Clara County line-level public defenders Krista Henneman and Carlie Ware Horne, and the group Progressive Democrats for Social Justice.
The litigation grew out of Henneman’s and Ware Horne’s support of colleague Sajid Khan, a deputy alternate public defender who ran to unseat District Attorney Jeff Rosen in the 2022 primary election; Rosen won that election outright. Khan placed third, considered by many to be a surprise because he mounted the most publicized and politically supported challenge to Rosen’s bid for a fourth term.
During Khan’s campaign, the plaintiffs questioned why they and Khan were legally prohibited from directly soliciting political donations and campaign support from their work colleagues, when their state government counterparts were not. Khan said the Ninth Circuit’s decision vindicated their criticisms that Section 3205 unfairly hamstrung them since they were kept from utilizing a resource that most novice candidates would turn to first: the people they work with.
“I was a first-time, non-establishment, non-incumbent candidate running against an incumbent, with the need to raise every dollar I could to overcome that advantage,” Khan said in an interview. “It restricted my ability to express my First Amendment rights and communicate with people who happened to be coworkers.”
“This was a landmark groundbreaking decision that will reverberate across the state,” Khan said of the ruling. “It will allow upstart campaigns like mine to access people they work with and ask for political contributions, and could meaningfully result in new non-establishment candidates being more competitive across the state.”
Charlie Gerstein, a Washington, D.C.-based attorney who represented the plaintiffs, called the overturned law “something close to indefensible,” and that he was “gratified that we saw justice done, though sadly it took too long.”
