Pat Dando Week: The Chamber Breaks the Law

There had been rumblings beforehand: talk of a series of hit pieces, not in support of the Chamber's candidate but, rather, bashing Cindy Chavez. There was a poll in the field that was asking people's opinion about the Grand Prix vote, Norcal and Tropicana.

What resulted was and is notorious: a series of a half dozen attack ads, a slew of automated voicemail calls from the daughter of Jose Mendoza, a Tropicana store owner, and, in a secret and often overlooked move, a push poll that went out to voters across the City. Today, we're going to look at Pat's decision to go negative, its ramifications and, perhaps most importantly, how the push poll slipped through the cracks.

Why To Break The Law

San Jose had a law on the books that applied to independent expenditures (IEs; that is, campaign spending not done by a candidate or in collusion with a candidate) similar contribution restrictions to those that candidates needed to meet. Candidates for Mayor couldn't receive checks in excess of $500. IE committees couldn't receive more than $250. This posed a problem for the Chamber, which had several hundred member organizations with deep pockets, but who could only give $250 each to a traditional, above-board campaign.

Early in the year, the Chamber reached out to their attorney, who delineated a course of action. There is a type of advocacy, issues advocacy, which doesn't have the same restriction on receiving money. In order to qualify as issues advocacy, however, the communication that goes out can't be directed at a candidate and can't, in a crucial stipulation, directly advocate for a candidate's defeat. The Chamber's lawyers recommended that they talk to the City's Elections Commission if the Chamber chose to go down this path. Pat and the members of COMPAC, the Chamber's political action committee, declined to do so, and launched their attack.

So the Chamber (which, you'll remember, supported Michael Mulcahy in the primary) directed a series of attacks on Cindy Chavez that they claimed were 'issues' pieces. As the Chair of the Elections Commission, Tom Mertens, declared, when a complaint came before them:

"I find it an insult to the voters and residents of San Jose that an organization would think the people of San Jose can't see through what's happening with a mailer like this."

The decision for Pat Dando was simple. She was deeply worried about what a successful Chavez candidacy meant to the Chamber and to the prospect of winning future Council races (such as, for example, District 10). She couldn't have the impact she wanted if she followed the law. So, she didn't.

(UPDATED: A commenter asks a question about who funded these pieces. Another side benefit to doing an issues piece is that it was much easier for the Chamber to hide the sources of their money. This allowed them to be more boldly vicious - there was less blowback for the people who ponied up. In fact, when the City Elections Commission asked for that information, the Chamber never provided it, despite promising to.)

This was not an act of civil disobedience, nor was it an honest attempt to create a discussion around issues. This was a financially driven attempt to smear a candidate that the Chamber, and Pat personally, feared.

Eventually, because of the Chamber's action, the law was evaluated and overturned on First Amendment grounds. The City of San Jose, which for years avoided these kinds of vicious external attacks because of its restrictions on financing, had no such restrictions for the rest of the campaign.

Hypocrisy and Calumniation

Chamber allies will often frame this issue like so: those opposed to what we did don't take issue with the content, but merely with the means. Nothing could be further from the truth. The mailers were completely hypocritical, disingenuous and misleading - but the story of the illegality swamped those points in the media.

Grand Prix: The Chamber attacked the vote on the Grand Prix, but Pat Dando herself spoke on the Chamber's behalf urging passage at Council.
Tropicana: Mailers and phone calls raised the spectre of the City taking land by eminent domain and handing it to business interests. The majority Council vote in support of eminent domain included multiple candidates for the Mayor's seat. And such an eminent domain proceeding was not without precedent - the Adobe Systems site was acquired in the same way.
The Gonzales Connection: As was pointed out earlier this week, the Vice Mayor that co-signed the memo on the extra $11 million for Norcal was Pat Dando herself.

The Secret Push Poll

And then, there's the issue of the push poll. A push poll, for those who didn't bother to click the link above, pretends to be a real poll, but is merely an instrument for planting suggestions in the listener's mind. The classic example comes from the 2000 Bush primary campaign, which asked voters in South Carolina if they would be more or less likely to vote for John McCain if they knew he had a child out of wedlock. Not true, but it plants the seed.

In a letter to the Elections Commission, Manny Herrera, a call recipient and former Mayoral candidate described the call as such:

Two weeks ago, I received a call at my home from an individual who claimed to be conducting a poll regarding the San Jose Mayor’s race. In actuality, the caller was presenting biased, inaccurate information about Vice Mayor Cindy Chavez and asking leading questions about her record on the Council.

Even the Mercury News, in their editorial on the initial attacks, said:

Meanwhile, somebody is conducting a telephone campaign against Chavez masquerading as a poll -- a particularly unethical tactic. It raises the same matters as the chamber hit pieces. Dando says the chamber is doing a poll but would not disclose the contents.

Several pieces of evidence indicate that this was not traditional polling but, rather, a push poll.

The strongest evidence comes from a source that spoke with a call recipient who had the temerity to ask the caller who it was that was paying for the poll. The response: Tab Communications. Tab Communications is the political consulting firm for Tab Berg, long-time political consultant for Pat Dando, and who was hired, once Pat took over, to do the Chamber's political work. In fact, featured prominently on Tab's website is this image:


Granted, this evidence is third-hand. But it is nearly impossible to know where Tab, who was publicly working for the Chamber on this series of attacks, spent his money. Any report of payment to Tab by the Chamber only states the broad work that he did, not the specifics.

But there is other evidence. Take the Mercury News' quote above. It clearly indicates that the polling calls were received after the mail hit. Typically a poll that seeks to find areas of weakness for a candidate goes out before mail is developed, and drives the mail content. And, according to recipients of the call, only a handful of questions were asked, and no demographic information recorded.

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The attack on Cindy Chavez was a dramatic departure from traditional politics in San Jose. What do we learn from this incident?

It's easy to get lost in the weeds, and I apologize if I did so above. But the core elements are as follows:

• Pat Dando made a conscious decision to attempt to work around and, ultimately break, the law.
• She deemed it appropriate to attack an opponent on issues that were misleading or ones for which she herself advocated.
• Evidence strongly points to the use of one of the most unethical political tactics developed: a push poll.

When we started Pat Dando week, the goal was to present a more accurate portrait of who Pat Dando is and what she stands for. There is no incident that more clearly delineates that portrait than that of last year. As the Merc put it in an editorial during the primary:

There'll be some close races Tuesday, but we already know one sure loser in this primary election: the San Jose Silicon Valley Chamber of Commerce.

The same goes for their CEO.

See the other Dando Week posts: A Look Back, Blue Ribbon Councilmember, Gonzales' Vice Mayor, and Lobbying Against Neighborhoods.