Cynthia Zimmer, locked in what would appear to be a close race with office colleague Scott Spielman for Kern County District Attorney, received some 11th-hour help this week that may not have been all that helpful after all: television commercials endorsing her candidacy that appeared to violate the spirit, if not the letter, of a local campaign spending ordinance.
The political consulting firm that facilitated their placement on local TV, faced with that possibility, announced Thursday evening it would pull the ads.
Cathy Abernathy of Western Pacific Research, the consulting firm with which the Zimmer campaign has been closely affiliated, said Thursday that WPR will cancel the ads purchased just this week and direct the Political Action Committee it has been working with on Zimmer’s behalf to find another firm to partner with.
At issue is whether the joint buy by WPR and the People’s Advocate PAC violated campaign finance laws including Kern County’s Measure K.
Zimmer and Spielman are obligated by Measure K to limit their campaign spending to $200,000 each. They can, of course, benefit from advertising paid for by so-called independent expenditure committees, so long as those ad buys are “not coordinated with or ‘made at the behest’ of the affected candidate or committee,” according to the California Fair Political Practices Commission.
Zimmer-for-DA advertisements placed with KGET-TV, KERO-TV and other local media outlets were paid for by People’s Advocate, a conservative PAC. Problem is, at least one of that PAC’s associates is an employee of Western Pacific Research, the political consulting firm that, along with a Sacramento firm, has been working for Zimmer’s campaign.
Nathan Banks Jr. is both the executive assistant to the chief of staff at WPR — or lists himself as such on social media — and “media and marketing director” of People’s Advocate.
Sacramento-based political consultant Ted Costa, a longtime friend and ally of Western Pacific Research founder Mark Abernathy, who died in January, also straddles both organizations. He made one of those recent Zimmer-for-DA TV buys himself, listing himself on a required National Association of Broadcasters form as chief executive officer of the sponsoring entity — “People’s Advocate P.A.C./ WPR,” as he wrote on the form.
Is it just me, or does that sound like a “coordinated” effort? Nope, wasn’t just me.
Cathy Abernathy, Mark Abernathy’s widow and his longtime associate at Western Pacific Research, produced a written statement on the matter late Thursday afternoon saying WPR had followed the law but that “WPR will remove the ad and People’s Advocate can use another consultant for this independent expenditure work.”
Measure K, the 2002 voter-approved campaign finance law that’s supposed to bring fairness to elections by controlling fundraising by candidates for county office, also limits contributions to their campaigns to $1,000 per individual and $3,000 per Political Action Committee. The Zimmer-for-DA ads placed this week at one station alone, KGET-TV, came to $13,445.
People’s Advocate was founded in 1974 by Paul Gann, the late tax crusader, but has been largely dormant since 2012, according to Federal Election Commission records. The PAC reported its cash-on-hand as negative-$10 in 2014 and “does not exist” in FEC records for the 2016 and 2018 election cycles, suggesting it may have been recently jump-started out of extinction.
Costa, who with Mark Abernathy led the successful statewide effort to recall Gov. Gray Davis in 2003, was at one time the treasurer of the Sacramento-based PAC. But the People’s Advocate treasurer is now Thomas Montgomery of San Rafael — which, perhaps not coincidentally, is where the PAC is now officially based.
Montgomery is also the treasurer for Zimmer for Kern County District Attorney 2018.
I reached Montgomery by phone Thursday and he didn’t seem especially pleased to talk to me.
“If you know anything about political reporting you’ll know that the treasurer is not the decision maker,” Montgomery said, declining to comment further. “Since you know everything, I’ll direct you to our (online organizational) statement.”
I told him I didn’t know everything, which was why I was calling, but he hung up. And I had planned to ask if he was free for a round of golf this weekend.
We know this: People’s Advocate went from negative-$10 four years ago to $36,200 on May 26 — and all in one day, thanks to eight donations from six people or entities. Three days later — that was Tuesday — People’s Advocate/WPR made a $37,000 ad buy.
One of those recent contributors was longtime former DA Ed Jagels, who has endorsed Zimmer and appears in her campaign literature. He gave her campaign $3,200 in two chunks.
Those eight contributions, of course, also exceed the $1,000 limit set by Measure K.
Spielman said his opponent’s camp has violated the rules set forth in the county ordinance.
“When they don’t play by the rules and they spend more than we agree to spend, that concerns me, especially in this race,” he said. “You’re running for a position that’s supposed to uphold the law, and I don’t think that looks good for the office. It’s disappointing.”
If this particular campaign seems to have taken on an overtly partisan flavor, know that it should not. District Attorney is a nonpartisan office and the race is ostensibly nonpartisan. Both Zimmer and Spielman are Republicans and both have been endorsed by a number of prominent Republicans.
The new television advertisement, a video of Congressman Kevin McCarthy, another WPR client, endorsing Zimmer, is substantially the same as the video that appears on Zimmer’s social media site. FPPC rules prohibit a PAC from republishing in substantial portion of a “communication” put together by a candidate. But there it is.
Cathy Abernathy and state Senate candidate Shannon Grove, also affiliated with WPR, say that Zimmer is no longer a WPR client, and instead has hired Meridian Pacific to run her campaign. Zimmer said so, too, on Thursday.
“After Mr. Abernathy passed, I put my campaign in the hands of Meridian and I’m following my campaign manager’s direction,” she said. “I’m just working hard.”
But Zimmer made payments of more than $5,000 to WPR just last month, as well as a “consulting retainer,” in addition to payments to Meridian Pacific. It’s moot anyway: FPPC rules say that an agent involved in a campaign any time over the previous 12 months is essentially still that candidate’s agent of record during that period of time. That means WPR cannot participate in an “independent expenditure” for, say, a purchase of advertising in the same way an independent, “not coordinated” PAC would be able to do.
Zimmer said she is too busy campaigning face to face with voters to know what others may be doing for her campaign.
“I don’t know, I don’t know, who’s out there doing what on my behalf,” she said.
In her written statement Cathy Abernathy said that, in keeping with FPPC rules, neither WPR staff or People’s Advocate has been in communication with Zimmer about ads that were placed in support of her candidacy.
She also wrote: “I do not believe my involvement with the People’s Advocate Independent Expenditure Committee ads violates any constitutional rule concerning independent expenditures, because I did not run WPR until February, after my husband Mark Abernathy’s death, nor was I ever a consultant to the Zimmer campaign.”
But Mrs. Abernathy has long identified herself as a principal with WPR and in fact has been the public face of the organization for decades. And the Zimmer campaign paid WPR as recently as May.
Nathan Banks did not return phone messages. Efforts to contact Costa were unsuccessful.
Zimmer noted that Spielman also has the support of at least one PAC. And Spielman confirmed it: It’s called the Kern Island Political Action Committee, and its members interviewed both Zimmer and Spielman, he said. “After that interview, they sent a mailer to voters stating, ‘Kern County is Safer with Scott Spielman,’” Spielman wrote in an email. “... Neither Cindy nor myself had any control over what the PAC chose to do or who they chose to support.”
“Then they went and picked a terrible picture of me for the mailer,” Spielman complained in jest later.
If Zimmer’s campaign is found to be in violation of Measure K, it could theoretically be fined by Kern County (where County Supervisor Zack Scrivner, who is Zimmer’s nephew, could be among those deliberating) in addition to anything that might be levied by the FPPC. But that would not occur until after the election, and the results will be the results, period.
FPPC spokeman Jay Wierenga said that agency — slammed by inquiries from across the state as the June 5 primary approaches — was not currently in a position to render any kind of opinion on the matter, nor would it this close to the election.
Which works out rather well for Western Pacific Research, don’t you think?