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Mayor’s Reply Brief by Corporation Counsel to
DCWatch and OCF Briefs
August 22, 2000

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No. ______


Neither the Office of Campaign Finance ("OCF") nor DCWATCH meets the arguments we advanced in support of Mayor Anthony A. Williams in our opening brief. Accordingly, we address only the principal new matters in their submissions.

1. Both submissions rest on the mistaken premise that a speech by the Mayor is the functional equivalent of speech by "the government." However, this is not a case in which the District of Columbia, as a municipality, is using public money to advance a particular position. Compare Carter v. City of Las Cruces, 121 N.M. 580, 915 P.2d 336 (Ct. App.), cert. denied, 121 N.M. 644, 916 P.2d 844 (1996) (Las Cruces engaged in campaign to persuade voters to approve acquisition of a private electric utility); Anderson v. City of Boston, 376 Mass. 178, 380 N.E.2d 628 (1978), appeal dismissed, 439 U.S. 1060 (1979) (Boston expended funds to urge Massachusetts electorate to vote in favor of a proposed amendment to the state constitution); District of Columbia Common Cause V. District of Columbia, 858 F.2d 1 (D.C. Cir. 1988) (The District of Columbia used public funds to oppose a citizens' homeless shelter initiative). Instead, this is a case in which the Mayor is using properly appropriated funds for the purpose of executing his official authority and responsibilities.1 Even if the government-speech cases were relevant, however, it bears noting that none of them held that the municipal expenditures challenged violated the First Amendment rights of the municipality's opponents. See Carter, 915 P.2d at 338 ("On this appeal, we need not and do not decide whether Plaintiff states a valid claim for violation of federal constitutional rights."); Anderson, 380 N.E.2d at 632 ("A municipality has no (state-law) authority to appropriate funds for the purpose of taking action to influence the result of a referendum proposed to be submitted to the people at a State election."); Common Cause, 858 P.2d at 10 (declining to reach First Amendment claim after finding that Congress had not appropriated funds for the challenged speech).2

2. Any Board ruling that the Mayor is permitted only to educate voters in a nonpartisan manner on issues of public interest and concern would itself violate the First Amendment rights of the Mayor. The courts have long recognized that, among other things, the First Amendment generally forbids the government from requiring citizens to advocate a particular point of view. See, e.g., Wooley V. Maynard, 430 U.S. 705 (1977) (state may not require motorists to display license plates containing the motto "Live Free or Die"); West Virginia State Board of Education V. Barnette, 319 U.S. 624 (1943) (state may not require school students to recite the pledge of allegiance); Clarke v. United States, 886 F.2d 404 (D.C. Cir. 1989) (Congress violated the First Amendment rights of the members of the Council of the District of Columbia when, as a condition of spending the District's federal appropriation, Congress required Council members to pass legislation authorizing religiously affiliated educational institutions to deny benefits to persons based upon their sexual preference), vacated as moot, 915 F.2d 699 (en banc 1990). These cases make clear that the Mayor may no more be required to set forth arguments against his position on Charter Amendment No.3 than he may be required to set forth arguments favoring the positions of the Nazi Party and the Ku Klux Klan in speeches opposing racism.

3. Both the OCF and DCWATCH suggest that the June 8 press conference was not a press conference but a campaign kickoff. These suggestions are belated and otherwise belied by their submissions, including DCWATCH's exhibit containing a tape of the event which is titled "Press Conference." More importantly, whether the event is characterized as a press conference or as a campaign kickoff does not alter the fundamental values of our system of government that require that the District's chief executive officer be permitted to express his views, using appropriate staff, facilities, and resources, on Chatter Amendment No. 3.

4. Both the OCF and DCWATCH seek to distinguish the considered decision of the Office of Legal Counsel ("OLC") of the United States Department of Justice, a decision that, by analogy, would clearly permit Mayor Williams to do exactly what he did on June 8. The OCF argues that the OLC memorandum is irrelevant because that memorandum addresses lobbying and, under local law, the Mayor was not engaged in lobbying. OCF Brief at 4, DCWATCH, in turn, argues that "nowhere does it refer to any election or campaign activities" and that it "is solely about and applies only to limits on lobbying by federal executive branch officials of Congress through communicating to the public under the Anti-Lobbying Act of 1919." DCWATCH Brief at 4. However, if the Mayor's conduct is not lobbying under local law, this only means that the legal prohibitions in that law are simply inapplicable to him, not that his conduct fails to merit First Amendment protection and other legal protection arising from his authority and duties as Mayor. Similarly, if certain direct communications with the public by federal executive branch officials -- those not aimed at persuading Congress are not encompassed by the federal law, this simply means that Congress can find no sound reason to prohibit them, not that they are somehow unprotected by the Constitution. Furthermore, as our opening brief explained, the 0LC memorandum does not rest on the federal definition of lobbying but on the fundamental values of a democracy. These values apply with equal force no matter how particular activities are characterized or the scope of federal and local lobbying statutes.

5. DCWATCH accuses us of "fundamental dishonesty" in citing Buckley v. Valeo, 424 U.S. 1(1976). According to DCWATCH, when the Court recognized that public money used to facilitate and enlarge public discussion furthers, not abridges, First Amendment values, the Court was "not speaking about the government's use of public funds to subsidize partisan activities on one side or the other of an issue, but about public financing of presidential election campaigns...." DCWATCH Brief at 6. With all due respect, DCWATCH simply does not understand the Supreme Court's decision. presidential election campaigns are among the most partisan in this country, and the Court's decision expressly upholds public funding of the campaigns of qualifying candidates for this purpose. In the current campaign, for example, certain presidential candidates, including Vice President Gore, may use public funds to promote their election without any obligation to present opposing viewpoints or to limit their speech to a discussion of the issues. Instead, they may be vigorously partisan and may even repeatedly urge the public to "Vote for me." While DCWATCH and the OCF may regard such speech as impermissibly "leading by the nose," (DCWATCH Brief at 5) or "telling the electorate how to vote," (OCF Brief at 10), the First Amendment has a different view. "Under our system of government, counterargument and education are the weapons available to expose . . [ and wisdom], not abridgement of the rights of free speech and assembly." Wood V. Georgia, 370 U.S, 375, 389 (1962). Indeed, in this country there is "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. .." New York Times Co. V. Sullivan, 376 U.S. 254, 270 (1964). permissible debate includes not only "vehement, caustic, and sometimes unpleasantly sharp attacks on government and government public officials," but spirited argument and calls for support by elected officials. Id. at 270.

6. DCWATCH now complains that the New School Governance Committee paid rent for use of school space for the press conference. This is somewhat surprising since this fact, if true, would appear to undermine its argument that public funds were impermissibly used for this press conference.3 In any event, the source of the funding is not important. Even if the Committee paid the rent, the Mayor has a fundamental First Amendment right to associate that surely allows him to accept an invitation to speak. See, e.g., NAACP v. Burton, 371 U.S. 415 (1963) (Virginia laws which prohibited advising persons that their rights had been violated and referring them to specific attorneys and legal organizations and which also prohibited rendering legal assistance to persons so referred unconstitutionally restricted the NAACP'S freedom of expression and association). In short, the First Amendment is not a club that may be wielded by opponents of elected officials to silence them or to force them to express views with which they disagree. To the contrary, the First Amendment, and the other fundamental values of our system of government, allow -- indeed require -- our elected officials to address matters of public interest and concern and to use publicly funded resources of their offices to communicate with the people they serve.

Respectfully submitted,

Corporation Counsel

Deputy Corporation Counsel
Appellate Division

Senior Assistant Corporation Counsel

Office of the Corporation Counsel
One Judiciary Square - Sixth Floor South
441 Fourth Street, N.W.
Washington, D.C. 20001
Telephone: (202) 727-6252


I hereby certify that on this 23rd day of August, 2000, I have caused a true copy of the foregoing (Corrected) Reply Brief on Behalf of Anthony A. Williams, Mayor, to be sent by first-class mail to:

Dorothy A. Brizill, Executive Director, DC Watch, 1327 Girard Street, N.W; Washington, D.C. 20009-4915; and
Kathy S. Williams, General Counsel, Office of Campaign Finance, Frank D. Reeves Municipal Center, Suite 420, 2000 14th Street, N.W., Washington, D.C. 20009-4915.

Senior Assistant Corporation Counsel

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1. The distinction is of some importance. This case would be different if, for example, the Council had enacted a law allowing public funds to be expended only for the purpose of supporting Charter Amendment No. 3, a law which would have prohibited elected school board members and Council members aligned with them from using their customary resources to oppose the amendment. When government speaks in such a fashion, there is a danger that opposing voices will be suppressed and that the electorate will be deprived of information that may be useful in casting their ballots. In the present case, however, the Mayor was not synonymous with the District of Columbia but was simply one of a number of elected officials who wished to contribute their ideas to the public debate.

2. Another aspect of Anderson is relevant. In issuing an injunction against Boston's expenditures, the Massachusetts Supreme Judicial Court also rejected Boston's argument that it had a First Amendment right to expend public funds for this purpose. However, the injunction was stayed by Justice William J. Brennan, sitting as a Circuit Judge, who ruled that the balance of the equities favored Boston. He explained: Because, under the First Amendment, "corporate industrial and commercial opponents of the referendum are free to finance their opposition[,]. . . unless the stay is granted, the city is forever denied any opportunity to finance communication to the statewide electorate of its views in support of the referendum as required in the interests of all taxpayers . . ." City of Boston V. Anderson, 439 U.S. 1389, 1390 (1978). The full Court declined to vacate the stay. City of Boston v. Anderson, 439 U.S. 951(1978).

3. DCWATCH also claims that the Committee's rental of school space "seems to violate 5 DCMR §3501." DCWATCH Brief at 2. However, as DCWATCH concedes, the regulation does permit use of school space by "'(a)ny person or organization conducting civic meetings for the free discussion of public questions.'" DCWATCH Brief at 2. A meeting to discuss the wisdom of the current structure of the District's public school board and to advocate a change in that structure easily qualifies as such a meeting.

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