Many Say TINCUP Should Be Revamped or Replaced

Orange County’s 12-year-old campaign-reform law is so convoluted, so riddled with loopholes that it “begs to be circumvented,” says Costa Mesa lawyer Dana Reed, who specializes in campaign law.

And circumvented it is, say critics from across the political spectrum and in a wide array of disciplines. In fact, nearly everyone associated with Orange County politics has some gripe with the way the county elects its supervisors.

Challengers say they face huge financial disadvantages in confronting incumbents; some contributors and supervisors complain that the law is hard to monitor and easy to violate inadvertently; campaign reformers gripe that a loophole in the law lets supervisors vote even when they have potential conflicts of interest; critics charge that the same loophole lets lobbyists channel money to the supervisors while representing clients with county business.

Unless the county law, known as TINCUP, is updated or replaced, many critics worry that supervisors’ races will become more unfair, special interests and their political action committees will grow more powerful, and individual contributors will become increasingly insignificant.

A Times Orange County Edition investigation shows that the past 14 years have already seen PACs emerge as significant players in financing supervisorial elections. Those committees, which are unregulated under county law, have poured $821,532 into supervisors’ races since 1977--almost all of it to incumbents--and have grown from supplying less than 4% of campaign financing in 1977 to more than 13% today.

“I think we’re going to look back 50 years from now and wonder: How did we ever have this campaign finance system?” said Robert M. Stern, co-director and general counsel of the nonprofit California Commission on Campaign Financing. “How did we let people who had business before the board set up PACs or get their employees to give . . . and then let the board members vote?”

Stern’s views are shared by observers in Orange County and beyond. But not everyone agrees on a prescription for change.

“We have to have some limits,” said slow-growth activist and San Juan Capistrano rancher Tom Rogers, echoing the views of many of the 55 politicians, business leaders, professors, activists and others interviewed for this report. “TINCUP hasn’t done enough.”

Option: Abolish TINCUP

As critics of the current system sketch out possible remedies, some start with a simple premise: The county’s current campaign law is unconstitutional, they say, and should be thrown out.

“I think it is clearly unconstitutional because what it does is, it limits the elected officials’ right or duty to vote,” Reed said. “TINCUP, I think, is an abomination.”

In a recent Santa Barbara case that Reed and others cite, a federal judge invalidated that county’s campaign law--modeled after TINCUP--because it allowed some groups to contribute with impunity while others were effectively constrained.

For example: Under TINCUP, a developer proposing a subdivision can give as much as he chooses to an Orange County supervisor, but if the supervisor takes more than $1,944, that board member cannot vote. The result is that supervisors and developers who contribute to the board generally try to stay beneath the TINCUP limit.

But say an environmental organization opposed that same development project. It could give an unlimited amount of money and never trigger the abstention because it has no “material financial interest” in the project. The board member could take that money and vote without fear of breaking the law.

Still, Shirley L. Grindle, who helped draft TINCUP and still acts as its monitor, vehemently rejects the suggestion that her ordinance is constitutionally suspect. Her position is seconded by the Orange County district attorney’s office.

But even Grindle would like to see some types of campaign contributing more strictly regulated.

Option: Regulate company PACs

Grindle’s main disappointment with the current law is that it allows companies with projects before the board to form PACs, which can contribute to supervisors without the board members being required to abstain from the companies’ projects. That’s because TINCUP does not mention PACs.

To address the loophole, Grindle and other backers of the original TINCUP law have nearly completed work on an extension of the ordinance that would force “business-entity” PACs to count their contributions against the contributions of the company that sponsors them. Such an extension would have to be approved by the supervisors, who also have the most to lose: Regulating company PACs would limit their ability to solicit contributions from those groups.

Under the approach advocated by Grindle, a $2,500 contribution to a supervisor from the William Lyon Co. PAC, for instance, would force a supervisor who received it to abstain from matters involving the William Lyon Co. The current law does not require that, and Supervisors Don R. Roth and Harriett M. Wieder have voted on company matters despite receiving contributions from the William Lyon Co. PAC.

But while Grindle’s proposal would have prevented those votes, it would not affect the vast majority of donations by political action committees in county politics.

Industry PACs, which receive financial support from groups of developers, could continue giving without forcing supervisors to abstain on those developers’ projects; lobbyists could still manage PACs while representing clients with county business; county employee unions could still give to the supervisors, who could still vote to approve their contracts.

Option: Limit all contributions

Some observers like Grindle’s idea, but say it would prove more effective if coupled with contribution limits. Stern and California Common Cause Executive Director Lisa Foster are two who support such limits.

“What the Orange County ordinance doesn’t attempt to do is limit . . . contributions,” Foster said. “I think one thing that one might consider in Orange County is saying: We’re going to limit PAC contributions, period.”

Stern and Foster add that contribution limits could be extended beyond PACs. All contributions could be capped at $1,000 per election, for instance.

That would cut the giving of some of Orange County’s most prolific givers: County employee unions would be forced to stop pumping tens of thousands of dollars into the reelection campaigns of the incumbent supervisors. The Building Industry Assn., realtors’ organizations and doctors’ groups would have to dramatically trim their giving.

Steve Malone, an aide to Supervisor Don R. Roth, also suggests that contributions could be limited to local residents--board members, for instance, might be prevented from taking any donation from anyone outside their district. That would prevent distant money brokers from spreading their influence, said Malone.

Still, as is always the case in campaign reform, contribution limits could touch off a mini-chain reaction. If corporate contributions are capped, companies could still encourage their employees to give; if PAC contributions are limited, individuals and companies could form more PACs and each one could contribute up to the limit.

In fact, even supporters of contribution limits believe that caps cannot by themselves erase all of the problems. For instance, caps are not likely to reverse the overwhelming advantage that incumbents enjoy, and enacting them still would leave intact a fund-raising system that discourages even qualified challengers from taking on a member of the board.

Option: Ban off-year fund raising

To address that problem, some suggest a ban in non-election-year fund raising. That would keep incumbents from amassing huge war chests to scare off challengers.

In its 1989 analysis of local campaign laws, including Orange County’s, the California Commission on Campaign Financing recommended such a ban.

“Since TINCUP, only challengers who hold another elected office, such as Assembly member or mayor, have been able to raise money in non-election years,” the commission wrote. “Restrictions on the time allowed for fund raising might tend to reduce the advantage of incumbents over challengers.”

But Supervisor Roger R. Stanton, who supports many suggestions for campaign reform, is one of several observers who firmly oppose that idea. Challengers need off-year fund raising to get their candidacies running, he said, and a ban would only further disadvantage them.

“Banning off-year fund raising does absolutely nothing to help,” said Stanton, whose record shows that he rarely holds fund-raisers in off years and thus would be little affected by a ban. “If you’re going to go with limits, then put the limits on. I agree with that. But don’t try to micro-manage.”

Option: Increase disclosure

At opposite ends of the reform spectrum, two ideas represent the most divergent approaches for change. At one end is simply increasing disclosure. Under state law, candidates already are required to file regular disclosure statements listing any contributor who donates $100 or more to their campaigns. But some activists support boosting that requirement locally.

Candidates could be required, for instance, to list their top five or 10 contributors on all their political mailings. And if those contributors were committees, candidates could be required to list the top contributors to each committee.

“That way the person who’s getting the mailing can make his mind up on the value of the piece and its truth,” said rancher Rogers, who ran an unsuccessful campaign for supervisor in 1978. “You would eliminate these people who are masquerading as environmentalists and saviors of the universe.”

Disclosure requirements also have the benefit of being undeniably constitutional: Jurisdictions rarely get in trouble with a court just for demanding more information.

Unlike many of the suggestions, disclosure has few real opponents, but many worry that it simply is not enough.

Listing contributors is only meaningful to voters who can recognize the names of donors. And in the case of listing committees and their backers, it requires that residents who receive the mailings have some knowledge of the committees. That asks a lot of election-weary voters, and many worry that disclosing more information will fall on deaf ears.

Option: Publicly finance elections As a result, many campaign reformers are decidely lukewarm about disclosure requirements unless they are coupled with more far-reaching regulations. At the extreme of that philosophy is public financing of elections, and supporters and opponents of that idea are equally strident.

“The only way to take the influence of money out of politics, the only way, is to take it out of politics,” Foster said. “That means that you come up with a clean source of money, and the only clean source of money I know of is public money.”

Under public financing, candidates who met qualification limits could get access to limited matching funds for their campaigns. In return for that cash, they could be then be asked to adhere to spending limits, which would hold down the cost of elections and lessen the influence of major contributors, especially if coupled with contribution limits.

Most experts agree that such a framework is constitutional.

But will the public support it? In Orange County, the answer seems almost certainly no. Local government budgets are extraordinarily stretched, and this county’s deeply conservative electorate seems unlikely to support spending more tax dollars on elections, even if the amounts are modest.

“There’s just something that rubs me wrong about using taxpayer dollars for campaigns,” said Board Chairman Gaddi H. Vasquez. “I believe that part of the process is how you go out and garner support, and part of that is how you raise money.”

Between public financing and simple disclosure lies the realistic array of options that supervisors might consider for reforming Orange County elections. Whether or not they will pursue any of them, however, remains an unanswered question.

Supervisors were elected under the current system, and therefore have reason to support the rules as written. What’s more, they are unlikely to be swayed by arguments that incumbents receive too much protection, since they are incumbents and have a great deal to lose by tilting the system against themselves.

Yet, several of the supervisors said they recognize that there may be room to improve Orange County elections. And some said they are willing to consider new rules to govern the way county leaders are elected.

Stanton, for instance, acknowledged that there may be a need for new reforms. Ideally, he said, those would come from the state, where uniform laws could be made to govern elections for all offices, ending the confusing patchwork of local regulation.

But whether the initiative comes from the state or the local government, the goal should be the same, Stanton said: “Let’s establish the ground rules and make them consistent. And let’s make them simple and make them fair. That’s what this is all about.”

Times staff writer Mark Landsbaum provided the computer research for this report, with clerical assistance from Darren Tass.

HOW THIS INVESTIGATION WAS CONDUCTED

Figures for this Dollar Politics series were developed during a four-month Times Orange County Edition investigation that used a computer to categorize 14 years of contributions to candidates for the Orange County Board of Supervisors. The period was selected to begin just before the county’s political reform law, TINCUP, was passed in 1978.

Using disclosure statements that candidates are required to file with the Orange County registrar of voters, the study identified 19,150 contributions made to either challengers or incumbents from all sources, including individuals, corporations, political action committees and other groups. Candidates are required to itemize contributions of $100 or more.

The information was edited to correct typographical errors, remove duplicate entries and confirm links between related organizations and contributors that had gone by different names during the study period. Where any links were unclear, those contributions were not categorized, so in some cases the findings are deliberately understated.

The results have also been checked against other government-maintained data, including the registrar’s separate list of major campaign contributors and the state’s list of registered political action committees. The computer research was performed by staff writer Mark Landsbaum, while staff writer Jim Newton reported and wrote the stories.

TRACKING THIS SERIES

SUNDAY: The impact that unregulated political action committees have had on campaign contributions to the Board of Supervisors.

MONDAY: County employee unions give thousands to the supervisors, who dole out millions in taxpayer-funded salaries.

TUESDAY: The transfer technique lets money given to one politician find its way to another.

WEDNESDAY: How a lobbyist uses a PAC to give thousands to supervisors, who then weigh the fate of his clients.

THURSDAY: Companies with their own PACs give at will and still stay within the law.

TODAY: Reformers and supervisors agree that the law is broken but disagree over how to fix it.

Seven Ways to Reform Campaign Financing

From the 55 politicians, business leaders, professors, activists and others interviewed during this Dollar Politics series come these ideas for updating Orange County’s 1978 campaign finance law. 1. Require more disclosure: Candidates could be asked to list top contributors on all literature, ads. Arguments For and Against: Pro: Gives voters information, lets them decide for themselves. Con: Voters won’t recognize names, won’t care. 2. Regulate company PACs: Would count contributions by company-sponsored PACs against company’s TINCUP total. Arguments For and Against: Pro: Supervisors could not collect big money from company PACs and still vote on company matters. Con: Unions, industry PACs would escape the net; transfers would be unaffected. 3. Ban transfers: Would stop the practice of politicians funding each other’s candidacies. Arguments For and Against: Pro: Politicians could not use contributions to build alliances. Con: Could make it tougher for unknowns to take on well-heeled incumbents. 4. Ban off-year fund raising: Would limit contributions to the period immediately before an election. Arguments For and Against: Pro: Less time for incumbents to build war chests, scare off opponents. Con: Challengers need extra time to raise money; ban would hurt them more. 5. Limit all contributions: Donations could be capped at $1,000 per election for companies, PACs, individuals. Arguments For and Against: Pro: All donors get equal treatment; easy to monitor and enforce. Con: Wealthy candidates get built-in advantage, could spawn PACs. 6. Create expenditure ceilings: Candidates could be limited in how much they spend on campaigns. Arguments For and Against: Pro: Most direct way to cut cost of campaigns; less money, fewer conflicts. Con: To be constitutional, needs to be accompanied by public financing. 7. Public financing of campaigns: Would allow candidates who qualify to receive limited matching funds. Arguments For and Against: Pro: Challengers get fairer shake; clears way for spending limit. Con: Tough in tight-budget times; even politically moderate taxpayers skeptical.