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September 1, 2010

Money talks

ACLU of Kentucky challenges contribution limit for school board candidates

For Jefferson County Board of Education candidate Brent Whaley, running in this year’s election was an easy decision. Last year, he fought with school officials to transfer his 6-year-old daughter to an elementary school closer to home after learning she was assigned to a school 20 miles away.

The 35-year-old Xerox manager eventually got his daughter into a closer school, but the frustrating experience led him to challenge board chairwoman Debbie Wesslund in what’s now a four-way race.

Among other things, Whaley’s platform includes support for neighborhood schools, a stance that sharply contrasts Jefferson County Public Schools’ student-assignment plan, which strives for diversity, sometimes in exchange for children having to travel far from home to attend school.

“I don’t know if busing is doing students any favors at that point in their life,” Whaley says. “And I’m not sure if it’s doing them any good when they’re going for the basics of education.”

It’s a message Whaley is having a tough time touting due to a lack of funds, which he says is the result of a state campaign finance law that restricts school board fundraising.

Whereas the state allows campaign contributions of up to $1,000 from individuals in most political races, for school board candidates, the limit is $100 from individuals and $200 from political action committees and other groups. Meanwhile, state law allows organizations — like the Jefferson County Teachers Association — to spend unlimited amounts promoting a particular school board candidate. As a result, critics argue the candidates whose platforms fall in line with such groups are likely to win.

“That cap makes it more difficult to run for school board, especially if you’re not a favored candidate with the teachers union,” Whaley says. “They’re basically allowed to circumvent that system outside of what a normal individual can do. It’s the rules we have to play with, but it doesn’t make it right.”

It’s a disparity the ACLU of Kentucky is hoping to change: Earlier this year, the civil rights organization sued the Kentucky Registry of Election Finance in U.S. District Court on behalf of two plaintiffs, arguing the state law undermines the democratic process, stifles political dialogue and violates donors’ First Amendment rights.

The ACLU is seeking a permanent injunction to stop the law’s enforcement beginning with this election cycle, believing the individual limit is “excessively low” and that school board candidates should be allowed to access a deeper pool of financial resources.

The law’s longtime supporters, however, argue it does not limit free speech and was enacted two decades ago in an effort to keep school board elections free from political corruption.

In 2008, Ben Foster, a University of Louisville professor and one of the plaintiffs in the lawsuit, made an unsuccessful bid for Jefferson County school board when he challenged longtime member Larry Hujo. The first-time candidate’s controversial platform included opposing the student-assignment plan.

According to campaign finance records, he raised more than twice the amount of the incumbent, but it still wasn’t enough; the teachers union endorsed Hujo and spent more than $160,000 promoting its selection to voters.

In the pending federal lawsuit, the ACLU of Kentucky argues the state’s campaign finance law hindered Foster’s ability to compete against an incumbent who was favored by the union, which is allowed to purchase unlimited billboards, yard signs and advertisements to support a candidate. In 2006, JCTA spent more than $350,000 to promote its endorsement of incumbent school board members.

The lawsuit does not challenge the ability of groups like JCTA to spend unlimited amounts, but instead argues the individual campaign donation limit is too low. The ACLU argues the limit is unconstitutional because it creates an unfair disadvantage for candidates not supported by organizations with deep pockets, leaving them to rely on miniscule contributions.

“In my case, the contribution cap made it almost impossible to run an effective campaign,” Foster says. “The way things have been set up with that donation limit, I don’t believe the people have had an opportunity to vote in an educated manner on the assignment plan or any issue. And the school board is a place that needs more diversity of opinion.”

The suit does not specify what the limit for school board candidates should be or if campaign contributions should rise to the level of other elections.

The General Assembly adopted the $100 and $200 donation limits in school board elections as part of a number of changes in the 1990 Kentucky Education Reform Act to improve public education.

The language regarding campaign finance was passed to combat corruption in school board elections across the commonwealth due to a growing concern about candidates’ fundraising practices.

“The legislature did this because all children in Kentucky have a constitutional right to an adequate education in efficient common schools that are free from undue political influence,” says KREF general counsel Emily Dennis, in a motion to dismiss the lawsuit. “The court should not second guess a legislatively determined threshold for preventing corruption of the electoral process in school board races.”

The state argues the plaintiffs also fail to present a concrete controversy involving the law and that Foster’s failed candidacy cannot be traced to the contribution limit.

The threat that overturning the law could result in dirty school board elections is a legitimate concern, but for candidates like Brent Whaley, there’s no reason not to have a similar law for all elections given the importance of school board races.

“I don’t see why the school board in general merits a much lower donation limit,” he says. “I feel locally, the mayor, Metro Council and school board are equally important. If this lawsuit is successful, and I hope so, maybe it’ll open up things more.”