Via Twitter
“We, not the candidates we elect, are the leaders we’ve been waiting for.”
–Flip the 49th! organizer
Wow. What could have been a defining event in the effort to win a Democratic majority in the House of Representatives turned into a punch in the gut for North San Diego County activists.
Polling from February confirmed what many feared; absent a Republican incumbent there was a real possibility of no Democrat making it past June 5th, thanks to California’s top two (regardless of party) primary system.
A candidate viability forum organized by Flip the 49th!, an independent expenditure committee (super-PAC) which grew out of the weekly protests outside Rep. Darrell Issa’s office, and an Indivisible chapter was supposed to confront candidates with hard questions about their continued presence in the race.
The group has been engaged in canvassing throughout the district for weeks, urging voters to participate in the primary, regardless of which candidate they support.
As organizer Ellen Montari told Mother Jones, the reasoning for the event boiled down to one question:
What makes you think you’re the one who’s going to save the republic here? Because it looks like so long as all of you think so, we’re going to go down in flames—and this will remain a Republican seat.”
Hundreds of people showed up on Friday, filling Oceanside’s Ocean Hills Clubhouse and spilling into overflow rooms. Another thousand turned in via Facebook to watch a live broadcast.
Only two of the five declared Democrats running for Congress took the stage.
Candidate Christina Prejean used the occasion to announce she was bowing out of the race, hoping to decrease the possibility of two Republicans advancing past the primary to the November general election.
Attendees applauded the move, and then there was attorney Mike Levin, all alone up on the stage.
Candidates Sara Jacobs, Paul Kerr, and Doug Applegate all bailed at the last minute, citing legal advice concerning the sponsorship of the forum by a Political Action Committee.
From Mother Jones:
According to Montanari, Flip the 49th! hired two election attorneys who specialize in campaign law to determine the legality of the event, and they found no legal problems with how it was structured. Because Flip the 49th! is a PAC, Montanari says, “We did have to set up some firewalls to make the forum happen, which we did at the express recommendation of the attorneys so that none of this would happen.”
Here’s the legal memo setting forth conditions for the event, issued by Strumwasser & Woocher, LLP, issued on February 26th (the date is important, as you’ll see later). The firm served as state election counsel to the Obama/Biden 2008 and 2012 presidential campaigns, and three of it’s attorneys are listed by the SuperLawyers rating service.
***
I went through the social media (and websites) of each of the candidates who canceled, looking for their side of the story.
Doug Applegate’s Facebook page posted this at 12:43 on Friday afternoon:
Graphic accompanying Applegate’s Facebook announcement
CHANGE OF PLANS!
Please join us tonight at 18:00 for our first ever “ATFR”, (Ask The Front Runner) at Bagby Beer Company, 601 S Coast Hwy, Oceanside, CA 92054. This is an impromptu event where your questions can get answered. Remember, this is your election.
The Women4Applegate Facebook page posted a longer analysis, starting out by saying they realized the frustration of people who expected to see their candidate at over the Flip the 49th PAC candidate forum.
Doug’s campaign posted the event publicly on Facebook after it became clear that the issue of that forum violating rules regarding candidates and PACs, raised weeks ago by Cori Schumacher and others, was going to be disregarded by the organizers. (Emphasis mine)
I can see saying ‘our lawyers disagreed with their lawyers’ as an excuse, but the whole ‘disregarded’ part is bullshit.
Sara Jacobs’ statement on Facebook at 1:16 pm on the day of the event hewed a closer to the ‘we disagreed’ line of thinking:
This decision comes after receiving legal advice that the campaign could be at risk of an ethical violation because Flip the 49th! Neighbors in Action does not have a “firewall” between staffs working on their Independent Expenditure and their coordinated candidate actions.
A member of our campaign expressed this concern to Flip the 49th! several weeks ago, and because a clear firewall has not been established, we’ve concluded our campaign is still at risk.
Paul Kerr’s campaign posted to Facebook at 3:20pm:
…we believe that the ethical issues associated with attending a forum hosted by a Super PAC are too great. If the Republicans were to attend a forum hosted by the Koch brothers we would rightfully call them out for this.
While we agree with the goals of Flip the 49th!, the legal and ethical issues remain the same. As Democrats we should be holding ourselves to a higher standard than we would hold the Republicans to. This only highlights the need to pass a constitutional amendment to overturn Citizens United.
Via Facebook
Here’s an excerpt from the statement Mike Levin’s campaign issued:
Before tonight’s event, in an abundance of caution, our campaign engaged an experienced election law attorney solely for the purpose of analyzing the legal permissibility of my participating this evening. And, after reviewing the factual and legal issues involved, he obviously concluded that I was able to participate.
Everything we discussed tonight was public information – whether it was the Flip the 49th Poll results, or any discussion of the strength of our campaign and our path to victory. I fully expect that Flip the 49th will scrupulously obey the election laws, and I attended solely to exercise my First Amendment right to speak about information that’s already publicly available.
I’d also like to say that the other campaigns have known that Flip the 49th was co-hosting this Viability forum since February 1st, yet have only made their concerns known this afternoon.
I’m not a lawyer, so I’ll just let these arguments stand. Read on, there’s more.
***
My gut tells me there was something other going on than concerns over a small fine/slap on the wrist from the Federal Election Commission.
What I can say with authority is that all three of these candidates failed to send somebody to deliver a message about why they weren’t there to those attending the event. Even a flyer handed outside the event would have been helpful.
What I can say with certainty is that the last minute nature of their cancellations fueled rumors, stoked anger, and promoted disunity. You should see [actually–don’t–it will just discourage you] the flame wars going on in social media. I’d be willing to bet there a more than a few trolls fanning the fire.
What I can say is that it’s damned convenient that none of the three had to answer these questions below. Instead, the audience heard [crickets].
Paul Kerr, via Campaign website
For Paul Kerr: Paul, you have stated that your personal story of a tough childhood, military service and business success will find deep resonance with voters, and the polling shows that this is true. Your story, as told in the poll, scored the best of all the bios that were tested. But, even after sharing your story with voters, you didn’t gain any significant votes. Like Sarah Jacobs, you’ve stated that you’re willing to spend 4 or 5 million dollars trying to win this primary. The questions are: do you feel that there is realistically a way for you to win without attacking the other Democrats and trying to take votes away from them? And, wouldn’t doing so help ensure that the Republicans win the top 2 slots in the primary, shutting the Democrats out of the general election?
Mr. Kerr, you have said you’re willing to spend millions of your own money to win this Congressional seat. But, if your candidacy has no realistic chance of success, wouldn’t it be a better return on investment and greater sense of patriotism to solidify behind a single candidate, even if that candidate is not you, and even if you truly believe that candidate is not as good as you, and spend those funds to turn the 49th Congressional District Blue? Are you willing to let the perfect be the enemy of the good?
Doug Applegate, via Campaign website
For Doug Applegate: The polling very clearly shows that you have both high name recognition and hi negatives. Two years ago, the Republicans attacked you and you lost this district at the same time that Hillary Clinton beat Donald Trump by almost 9 points. According to the polls, your negatives remain high. This time will be tougher. Issa is out and the Republicans seem ready to nominate someone they can package as moderate. Also, Democrats don’t tend to turn out in the mid terms like they do in a presidential election. The question is: Why should we get behind you when you have not overcome the very weaknesses that lost us this race two years ago?
Colonel, you nearly beat Issa two years ago in one of the closest races in the country which gave hope that a Democrat can win in this district. We are 3 months from the Primary and have seen a fair bit of turnover in your campaign and your fundraising has not kept pace with others. Although recent polling showed you more favorably, at the Democratic Party convention you came in a distant second and are positioned to be outspent by 3 challengers. What happened to the advantages you held as the frontrunner? Taking all of this into consideration, why should we be confident you will have a stable and effective campaign capable of beating the Republicans in November?
Sara Jacobs, via Facebook
For Sara Jacobs: We have too many Democrats running and none of the polls that are public show you in, or even near, the lead. You have said that you plan to spend 20-50 times more than any other candidate and plan to spend whatever it takes to finish first or second in the primary. To back that up, you wrote a personal check for $1M at the start of your campaign and we can assume that you are willing to spend 4–5 million dollars to win this seat because you believe, like we do, that turning Congress blue is the first step in stopping the catastrophic Trump agenda. The question is: are you willing to spend the same 4-5 million dollars to help another candidate who could run in this election and turn the 49th blue?
Ms. Jacobs, the current state of the race presents the very real danger that no of Democratic candidate will make it past June, and all the public polls show you trailing far behind both the front runners. You’ve said you plan to spend whatever it takes to finish first or second in the primary, but polling analysis indicates any increase in support for you would come exclusively from Democrats currently supporting Applegate and Levin. In other words, you only stand a chance of stealing votes from other Democrats, not from Republicans or Independents, which means you would need to tear down your Democratic counterparts to improve your standing. Given that the current margins in June are so slim, won’t increasing your vote share by decreasing share from within the Democratic candidates just ensure that all Democrats finish behind the top 2 Republican candidates?
***
Mike Levin, via Twitter
For the record, candidate Mike Levin did answer his question: Mike, you’ve run a very impressive campaign thus far. Several polls show you solidly in second place on the Democratic side behind Applegate. You’ve conducted an effective campaign knocking on doors, phoning voters and consolidating your base in Orange County and among environmentalists. But despite all these efforts over more than a year, you still trail behind Applegate. Some of your opponents are arguing that you should drop out of the race, because many of your supporters would flip to Applegate, pushing him past Chavez into first place. So the question is: given this track record, where do you see room to expand your support enough to finish second in the primary without tearing down Applegate further, or without several other Democrats dropping out?
You have impressively raised approximately $1.5m without relying on self-funding to do so. But Mr. Levin, my question is this: How can you possibly compete going into the final 90 days of the Primary against two self-funded candidates who have millions of their own money to pour into the race…particularly given that you have approximately $350,000 in available funds. You may be second in the polls, but going up against the money being spent by Sarah Jacobs and Paul Kerr, how can prevent being outspent at a rate that will completely drown-out your message to voters?
Here’s a snip from his answer, via Mother Jones:
“I know there is no substitute for getting out there in the community and doing direct voter contact,” he said, highlighting his background as a grassroots political organizer and his previous stint running the Orange County Democratic Party. “We’ve already knocked or walked or called every single Democrat or decline-to-state in this district once, and we’re going to do it again between now and June 5th.”
He also sat quietly as questions directed at the missing candidates were read aloud.
***
So now my question to all the candidates who bailed on the event is: Each of your statements expressed appreciation for the efforts of the volunteers from Flip the 49th. What are you going to do to encourage the people who might have been discouraged by your decision?
***
Here’s an excerpt from the event post-mortem via Flip the 49th’s Terra Lawson-Remer.
Flip the 49th! canvassers in action, via Facebook
Sometimes leadership is about putting aside slights and small differences and just doing what’s right. Any of the candidates will be infinitely better champions for us in Washington, better defenders of democracy and shared opportunity and American values, than the Trump nominee. And I will be very proud to support Doug Applegate, Sara Jacobs, Paul Kerr, or Mike Levin when one of them makes it through the June primary. I am also proud to know Christina Prejean, who had the courage and vision to step aside to reduce the number of Democratic candidates in our crowded field.
So for those of you who were disappointed yesterday, we are asking you to show leadership, shake it off, and stay committed and engaged in the larger cause. The organizing work remains same — the Democrats only have a chance at victory in November, much less in June, if we are talking to our neighbors about this election and the issues that matter so much to so many of us.
The powerpoint presentation shared by FM3 Research last night had many interesting insights. In addition to the concerns about our crowded Democratic primary field, one thing stood out for me: this election will be won or lost based on the number of left-leaning voters who turn-out to the polls in both June and November. We win if we can grow that pie. We lose if we don’t.
So we ask that each of us recommit to knocking on doors, making phone calls, and talking to voters over the coming months. Please sign-up here to join us. And bring a friend, or two. We’re canvassing every Saturday, and phonebanking most weeknights. Change is slow, hard work, built on the cumulation of setbacks and successes and conversations and relationships. This is our work. We, not the candidates we elect, are the leaders we’ve been waiting for. Hope to knock on some doors with you soon.
UPDATE & APOLOGY: I forgot to include the disclosure I’ve made in two other articles I wrote about the 49th recently, namely that I donated background research on ALL (Both GOP & Dems) the candidates used in formulating the questions in the poll referenced above.
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Doug Porter
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I was just reflecting on all the drama about the 49th District candidate elimination event that did not happen. Upon reflection, Thank God things did not quite work out.
Who are we to tell somebody they cannot run for an office because it might cause our party to lose? I get the pragmatism that animates the efforts and curse the name of Arnold and those who voted for a jungle primary when Proposition 14 overwhelmingly passed. Now we can see why that might have been an awful idea.
I do not want to see a Republican elected ever. But do we have the right to host a “viability forum” and bully a candidate out of a race, because a mob thinks they are obstructing their favorites by running? Running for office is a right like a ballot and the right to free speech. Do we earn the right to dictate the exercise of that right because we write a check or ring a doorbell? Does my utter conviction that a candidacy is harmful to my perception of the public good, give me the right to pass judgment on a candidate’s viability? The entire system of open primaries exists because party bosses used to arbitrarily make those calls without public input. I cannot believe that we are better off having that role replaced by consultants working for a hybrid PAC, with a relative handful of unelected activists ratifying the collective wisdom of folks who are more than occasionally wrong.
And like it or not, there are substantive legal concerns about what almost happened. If I was a candidate polling in 4th place, I would have moved heaven and earth to get the frontrunner or newcomer voted off the island. But it does not mean that it was ethical or right or compliant with election law? Though some might be willing to pay a nominal FEC fine in a few months, who are we to condemn or question others not willing to accept that liability? A few months back there seemed to be a defined firewall between Flip the 49th and the campaigns. But when an event is presented as an open discussion about campaign viability that wall was very plausibly breached. My belief is that there was enough of a doubt, for a reasonable campaign to make an ethical choice to not attend.
No, I do not want a Republican to win this June or in November. I detest Trump as much as you probably do. But in a democracy, we all do get to run for office. It’s a form of free expression. Of course, there are consequences to those decisions, that might include having no political career left if one is selfish or wrong. But like it or not, we really do not have the agency to dictate those choices for others in a “candidate viability forum”, no matter how much we want our side to win. At the end of the day, it’s the voters that get to decide those things. Not just a few of us, no matter how well-intentioned.
Sorry that you think a group dedicated to ensuring a Democrat gets elected holding a forum amounts to bullying. I’d bet I (privately) probably support the same candidate as you do. The tone of your reaction will have but one effect–to discourage people from participating. Who wins in that scenario?
One cannot prevent people from participating in an event that is in the past. And if one response to a piece in a local web-zine is enough to discourage anybody from doing anything they previously wanted to…let’s just say that strains credulity. Try as they might, the field is not going to thin enough to help Mendacious Mike get in.
With a handle like “Never Levin,” I’m certain this isn’t the only place you’ve spread your wings.
And I stand by my original question: who wins when you talk smack?
Do you really think anybody’s going to rush out and vote for (or even think about voting for) any other candidate based on your negativity?
You know what wins elections? Hard work.
If you really believe in a candidate they need your help in the field a whole lot more than they need you being cynical on the interwebs.
Basta!
The cancellations just can’t be explained away by statements about lawyers’ advisories, and thank you Doug Porter for getting as close as you could at short notice without explaining the ultimate. Two questions: did the Demo County Central Committee have any explanation, or did they weany out because the “lawyers told us to?”, and, “Why should we care so much about flpping the 49th?” Would we get anybody more democratic than, say, Scott Peters, to fill the seat? Let the old skinheads turned racists, and evangelicals turned nazi, and Trumpistas and retired stockbrokers continue to hold that seat. They’ll embarrass themselves more than Issa did, and by the next election the Republicans will have to fold the tent here and move their operations to Turlock and Fresno to make their comeback.
The Democratic County Central Committee had absolutely nothing to do with the forum. In fact, they were aghast that people would go out and organize something they didn’t control, since (I believe) they were quietly putting their finger on the scale for a certain candidate. And, yes, all the candidates are more progressive (on paper, anyway) than Peters.
We cant lose the 49th! I hope that the people of the 49th look at young Sara and give her a chance. The youth of our country should be supported in their efforts. Bravo to Sara and other young women and men for standing up and taking on the challenge.
Na, I gave up on polls in 2016. Elections are won not by the majority but by the group that cares the most. What was the voter turnout in the last off-year election primary?
There will be more polls before June… they will continue to call and call from unrecognized numbers; I will continue to not answer because I’m a millennial, and I will remain unaccounted for in the polls. Meanwhile we will hand out fliers and knock on doors and we will put two democrats on the ballot in November!
Seriously though, instead of trying to narrow the field, we should really be focusing on getting people nationalized before November! There are people living in our neighborhoods right now who do not have the right to vote. That is the real tragedy.
The forum was a result of hasty planning and dismissed red flags from many members of the grassroots community, including myself. There is no dispute that the people who organized the event , Flip founders and paid officers are hardworking patriots, but they lacked direction and insight as to how to support a Democratic candidate while giving a platform to voters to determine who they would support.
Why did Flip turn into a hybrid PAC and only disclose this as voters cried foul? If not to endorse a candidate of their choosing , then why?
As an organizer and community member I want my voice to be heard and valued.
Just because you have a legal
Memo saying you can do it, doesn’t mean that you should. The ethical questions of the forum, should be studied a bit more. To disregard our own Democratic candidates hard work, is short sighted and doesn’t send the message of hope we need.
There was a reason the League of Women voters chose not to moderate. To understand how Friday happened, you must go back a few months and understand how the grassroots efforts were co opted.
The questions were ridiculous and bias. We should be running against the republicans, not against ourselves.
Oh, and BTW, the 49th was not the top news story of the day on Friday, Saturday or Sunday.
This is one fight, one state, one district.
Now, back to the work at hand.
Hi Lisa,
I agree with you wholeheartedly. I was the facilitator of the group who worked for several hours in developing questions for the venue. As a team, we focused on not creating leading questions that would give one candidate preference over another.
We reviewed different types of statistics (e.g. homelessness and the impact within the school districts/communities, military personnel and what happens to them when released, etc). The process we went through was arduous, but we wanted to ensure we understood what the local issues or challenges were now and in the future. We also wanted to understand how each one of the candidates would deal with broad-sweeping issues (e.g., Social Security). We did not want to give preference to one candidate over another or ask questions that would give one candidate the lead.
I was set to volunteer the night of the venue, including asking one of the questions of the panel. However, when I was given the “new” set of questions that were going to be asked that day, I withdrew as I was driving back to San Diego. From my perspective, I felt the objective of the program had changed. I guess I was right by the signs that were at the venue (Only One).
Looking back, I began to have feelings that maybe the group was for a specific candidate and I wanted to ensure they knew I had walked with Doug Applegate at the Woman’s March, so I disclosed that information early on and asked if it was okay that I continue to participate. I was concerned my participation in the group was inappropriate. I was told it wasn’t an issue.
I felt terrible the day I got the new questions and felt compelled to send out an apology note to everyone on the team who had worked so hard on the project. I felt like I wasted a lot of their time and mine. We were originally told they just needed to be tightened up, but from my perspective they weren’t just tightened up.
I thought the purpose of the the venue was to let all the candidates tell the audience how they would personally handle specific challenges and whether or not they had begun to plan out or think about how they would tackle upcoming issues and challenges we are going to face as a community and a nation.
I’ve decided to dedicate my time to help register additional voters and do what I can to have a positive impact on the campaign and my community.
Hi, my name is Kevin Lourens and I wish to get to the bottom of this.
Could you private message me on Facebook with what you specifically saw in the question change?
Thank you
Thank you for your reply and for volunteering
I attended a PAC meeting at a private home as a guest in early 2017 where Doug Applgegate was the featured speaker. He spoke and took questions, open forum style for over an hour, just like the event last Friday. If he could come to that PAC meeting to speak and take unfiltered questions from PAC members and constituents, he could have been at the Flip event. The election law excuse has zero validity. They simply didn’t want to face the music and are now trying to save face because their plan backfired.