A federal appeals court Wednesday overturned a 1970s-era ban on local government employees seeking political donations from each other, a ruling 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 loosened rules on state employees turning to each other for political support, fundraising and otherwise, but preserved restrictions for public workers who worked at county and other municipal levels. Wednesday’s written decision by the Ninth Circuit Court of Appeals, which declared Section 3205 unconstitutional, recalled how Brown’s 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 why county and local employees were subject to more scrutiny.
“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 concurrent opinion that also criticized the rationale presented by Bonta’s office, 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.’
Bonta’s office did not immediately respond to a request for comment Wednesday.
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, the year of the initial lawsuit filed by Santa Clara County line-level public defenders Krista Henneman and Carlie Ware Horne, and the group Progressive Democrats for Social Justice.
The genesis of the lawsuit stemmed from 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, which Rosen won outright by garnering more than 50 percent of the vote. Khan placed third — with Rosen’s former line prosecutor Daniel Chung being the runner-up — considered by many to be a surprise result 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 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 not allowed to effectively turn to a resource that most upstart candidates would turn to first: the people they have worked with for years.
“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 to be 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.”
This is a developing story. Check back later for updates.