Is the Clean Up Anaheim Act unconstitutional under Citizens United?

Scalia commits spoiler.

Let’s cut to the chase, and leave any people, politicians and personalities out of this for now:

The 2009/10 Supreme Court decision known as “Citizens Unitedprohibits governments from regulating or limiting or banning Independent Expenditures (IE’s.) Or. To be more precise, 1976’s Buckley vs. Valeo prohibited the regulation of IE’s from individuals, while Citizens United [CU] extended that protection to IE’s from corporations and unions.

The “Clean Up Anaheim Act,” which nearly passed last year (with a 3-3 vote) DOES NOT DO THAT. It does not regulate, limit, or ban any Independent Expenditures.

The component of the “Clean Up Anaheim Act” dealing with IE’s prohibits an Anaheim Councilmember who has received $250 or more in help through an IE from voting on a matter affecting the parties who made that IE (who are generally referred to as Political Action Committees or PAC’s) for one year. (Some would prefer that to be half a year, some of us would prefer it to be two years, but no matter.)

I would call that “DISINCENTIVIZING” Independent Expenditures, lessening the motivation for a person or company or union or PAC to make that expenditure, as there’d be no vote to get out of it in return. It is classified as a RECUSAL law. But it is NOT regulating or limiting or banning IE’s.  

What was that about Justice Scalia again?

Folks who opposed the Clean Up Anaheim Act last June argued not only that Citizens United (CU) would prevent Anaheim from doing ANYTHING in regard to IE’s (possibly under the misimpression that CU gives IE’s some kind of untouchable Superpower), but that RECUSAL LAWS (yes, they are so common they’re a category) violate individual legislators’ personal First Amendment right to vote – that a legislative body like a City Council cannot constitutionally force its members to recuse under certain circumstances.

Pero, our Anaheim City Attorney responded NO. Turns out the late, arch-conservative, Supreme Court Justice Antonin Scalia – who had joined enthusiastically with the majority supporting CU – held that legislators “do NOT have a personal, First Amendment right to vote on any given matter,” and that recusal laws like the Clean Up Anaheim Act are perfectly constitutional.

I asked the City Attorney for more details on that Scalia opinion, and it’s Nevada Commission on Ethics v. Carrigan 564 US 117 (2011.) 2011! A year after Citizens United, the Supreme Court ruled that a body like our City Council COULD force its members to recuse themselves for specified conflicts. And it wasn’t just Scalia either – the Supremes ruled unanimously, including all the Citizens United Five.

“Nope, this is okay, you guys.”

Scalia even quoted Thomas Jefferson (the Sage of Monticello) from when he was President of the US Senate in 1801:

“Where the private interests of a member are concerned in a bill or question, he is to withdraw. And where such an interest has appeared, his voice [is] disallowed, even after a division. In a case so contrary not only to the laws of decency, but to the fundamental principles of the social compact, which denies to any man to be a judge in his own case, it is for the honor of the house that this rule, of immemorial observance, should be strictly adhered to.”

A Manual of Parliamentary Practice for the Use of the Senate of the United States 31 (1801)

Our City Attorney went further, telling us that in his research he’d run into numerous “academic articles that generally advocated for the EXPANSION of recusal laws to independent expenditures” – exactly what we are trying to do here. No wonder this gentleman, not given to rocking any boats, expressed certainty that he could defend the Clean Up Anaheim Act in court if anyone challenged it!

Why This is so damn important, in Anaheim

(to begin with!)

Look at this bar graph. The three blue columns on the right side, below.

Yes, there is a teensy bit of blue in the middle “column” if you lean forward and squint. That is Disney’s DIRECT contributions to Anaheim candidates, through 4 election cycles. These direct contributions, totaling $32k, have a limit of $2500 or so, and are NOW regulated by a brand-new state recusal law based on the Levine Act, SB 1439 – meaning in the future anyone who gets these direct contributions from Disney will not be able to vote on matters affecting Disney for a year.

Literally DWARFING that is the blue column on the left, which shows Disney’s REAL spending on those Anaheim campaigns – the OVER FOUR MILLION in INDEPENDENT EXPENDITURES paid through their PAC “SOAR!” And that’s just Exhibit A. Close to 99% of Anaheim’s campaign spending comes through PAC’s and IE’s – Disney and the resort district, landlords, police and fire, developers and labor unions.

It’s a good bet that, now that direct contributions are “disincentivized” by the SB 1439 recusal law, while IE’s are not, our town’s special interests won’t even bother with direct contributions any more but put ALL their money into IE’s instead of just 99% of it. But one thing is very clear – ANY SO-CALLED CAMPAIGN FINANCE REFORM THAT DOESN’T DEAL WITH IE’S IS A JOKE NOT WORTHY OF THE NAME CAMPAIGN FINANCE REFORM.

And that is EXACTLY what Democratic “reformist” candidates Ashleigh Aitken and Carlos Leon, as well as OC Democratic Party chief Ada Briceño, said last year, as you can hear in this video:

So it is jarring, and the occasion for writing this article, to hear a newly elected Anaheim politician – all right, our new Mayor – claim after being elected that she “FUNDAMENTALLY” believes our Act is unconstitutional – and that she ALWAYS believed this, even though she never mentioned it before when she was praising the entire Act and urging its passage last summer.

She was very insistent about this new certainty of hers at the Feb. 2, 2023 Anaheim Democrats Club meeting, as you can hear above starting at 6:40. We really hope she reconsiders and that at least three of her colleagues join her… because it’s going to be a LOT OF WORK for us citizens to pass it ourselves.


Let’s make ANAHEIM FIRST – in reform, not graft!

It’s true that we’ll be among the first cities – maybe the first – to enact a Recusal Law affecting Independent Expenditures. Well, dirty I.E. money is a bigger problem here than in most cities our size.

Right now, Anaheim is famous for

  1. Disneyland;
  2. the FBI corruption probe and forced resignation of Mayor Harry Sidhu; and
  3. POLICE KILLINGS (although those are thankfully down since the bad years of 2011-18.)

We are becoming the new poster child for sleazy pay-to-play politics, the new Bell. “Anacrime,” “Anaslime,” and “Anaheist,” smartasses say, everywhere.

Wouldn’t it be great if we were known, as well, for DOING SOMETHING ABOUT THIS? Just as every other OC city is beginning to follow our lead in switching to district elections, just as Santa Ana followed our lead in creating a Police Review Board (and made it much stronger), so cities statewide and nationwide will emulate our “Anaheim-Style Campaign Finance Reform.” It’s the Anaheim Way! And something the current Mayor and Council could be mighty proud of.

About Vern Nelson

Greatest pianist/composer in Orange County, and official troubador of both Anaheim and Huntington Beach (the two ends of the Santa Ana Aquifer.) Performs regularly both solo, and with his savage-jazz quintet The Vern Nelson Problem. Reach at, or 714-235-VERN.