Last week, the California Democratic Party announced an unusual agreement between two candidates in the 39th Congressional District, Gil Cisneros and Andy Thorburn, who had been tearing each other apart for weeks, using their self-funded war chests to unveil attack websites and negative mailers.
In a formal truce, the candidates agreed to not denigrate one another between now and the June 5 primary. Both took down the hit websites about their opponent. They even took a Sadat-Begin, Camp David Accords-style picture to consummate the deal.
California Democratic Party chair Eric Bauman, who mediated the Cisneros-Thorburn cease-fire, said in a statement that the flood of first-time candidates in suddenly winnable districts across California was encouraging. But he feared that “the competition in the Primaries can become so heated and divisive it impedes our ability to unite behind the person chosen by the voters to represent our Party in the fall campaign.” The nonaggression pact, Bauman concluded, would allow the Democrats to focus on their Republican opponents, and avoid the “corrosive and divisive attacks that have hurt Democratic candidates in the past.”
But just across Orange County, in the 45th Congressional District, corrosive and divisive attacks have characterized the last couple weeks of campaigning. Dave Min, the California Democratic Party’s endorsed candidate in the race, has gone hard negative against two of his opponents, accusing them of lying about their records and being funded by special interests. Min’s allegations are in some cases factually questionable at best, based on an analysis of the claims.
Though both of the Democrats being attacked — Katie Porter and Brian Forde — have asked the state party to step in like it did in the 39th, the party has yet to do so. California Democratic Party spokesperson John Vigna said the main difference was that the party didn’t endorse a candidate in the 39th District but did in the 45th, so they couldn’t serve as an honest broker in any negotiations: “In a contest where we’ve made an endorsement, we obviously wouldn’t be seen as neutral.”
But there’s another difference between the two races. The 39th District could represent the ultimate failure for Democrats. Because of California’s “top-two” primary, in which the two leading vote-getters advance to the general election regardless of party, Democrats could get locked out of the race in November. With three credible Republicans and four Democrats running, having two Democrats whale on each other for a month could depress turnout and let two Republicans slip through.
But that problem doesn’t exist in California’s 45th. Only one Republican — incumbent Rep. Mimi Walters — is in the race. A Democrat is effectively ensured participation in the general election. So, it’s bombs away for Min against his Democratic rivals.
Unusually, Vigna did express some discomfort with the actions of the party’s endorsed candidate. “As a general rule, we certainly think the voters are best served by candidates who promote themselves and their vision of service, regardless of whether there’s a chance we could be shut out by the ‘top-two’ rules,” Vigna said. “It’s possible to run a spirited but respectful contest that leaves the party, and our nominee, stronger in the fall, and that’s an approach we believe all of our endorsed candidates should do their best to emulate.”
Min, an assistant professor at University of California, Irvine, and former Chuck Schumer staffer, earned the state party endorsement in February. His chief rivals are Porter, also a law professor at University of California, Irvine, who has the endorsements of Sens. Kamala Harris and Elizabeth Warren; and Forde, a senior adviser in the Office of Science and Technology Policy under former President Barack Obama. There has been scant public polling on the primary, most of which shows Porter with a slight lead on Min for the top two; polling from End Citizens United shows Porter leading Walters in a head-to-head matchup.
The Min campaign started airing the negative TV ads last week. The first hits Porter and Forde for taking “special interest” dollars. Walters, the Republican, appears on screen but is not mentioned.
“Washington insiders have spent over $100,000 to elect Katie Porter,” the narrator says. “And Brian Forde’s big donors? Bitcoin speculators that oppose cracking down on drug deals and human trafficking.”
A second ad dispenses with showing Walters at all, accusing Porter and Forde of lying about their credentials. Porter listed “consumer protection attorney” as her ballot designation, but according to the ad, “does not have a California law license and never even passed the state bar.” Forde, the ad states, was a registered Republican until last year.
Forde told Vice that the bitcoin attacks “are sensationalist, wildly inaccurate, and in line with my opponent’s lack of understanding of the technology.” But, though Forde has raised the most money among Democrats, the attacks do appear to be more targeted at Porter, who has higher-profile backing. A mailer Min sent out doesn’t mention Forde at all, solely attacking Porter for exaggerating her role in combating the foreclosure crisis, as well as taking money from “hedge fund managers and Wall Street executives,” while he does not receive bank lobbyist or corporate PAC donations.
The attacks sit in between being somewhat legitimate and really shaky.
The “Washington insiders” in the first ad refer to EMILY’s List, a Porter endorser, as well as the End Citizens United political action committee. These two entities have, in other races, been allied with the Democratic Congressional Campaign Committee, though the DCCC has not been involved in this race. The claim about hedge fund donors also appears to be correct: Porter received $5,400 from Paloma Partners CEO Selwyn Donald Sussman and $2,700 from Baupost Group’s Seth Klarman, the notorious hedge fund manager who hid his holdings in Puerto Rican debt.
Overall, however, the picture is more cloudy. Porter campaign manager Erica Kwiatkowski said Porter has received over 23,000 individual donations from 15,000 individuals, and “over half of those contributions have been for $5 or less.” About $286,000 of Porter’s fundraising has come from donations under $200, according to campaign finance disclosures. Min, by contrast, has raised $160,000 in low-dollar donations. Both have raised about the same amount in high-dollar contributions.
While Min claims to have not raised any money from bank lobbyists, his fourth-largest donor in terms of employer is Goldman Sachs. Asked about this at a recent candidate forum, Min said, “A friend of mine is an employee at Goldman Sachs. That’s different than accepting money at a big bank. Everyone in this room has taken money from employees of financial institutions, financial lobbyists, and the like.”
Also in Min’s top five are Google’s parent company Alphabet and the Washington lobbying law firm WilmerHale (whose attorneys have represented the likes of Paul Manafort, Ivanka Trump, and Jared Kushner). He also has received $1,000 from the PAC of the New Democrat Coalition, the moderate Democratic bloc in Congress which supplied 27 votes in the House for the bipartisan bank deregulation bill which passed this week. Three of Min’s Congressional endorsers — Lou Correa, Ami Bera, and Scott Peters — voted for that bill.
The ballot designation attack is far stranger. Min asserts that Porter has “falsely claimed” that she is a consumer protection attorney, because she hasn’t passed the California state bar. But Porter has an active law license in Oregon, obtained in 2002; she practiced bankruptcy law in Portland, making her, well, a consumer protection attorney. Min did not challenge Porter’s ballot designation when it was introduced. In fact, his own ballot designation of “law professor” could be up for debate, because Min is actually an assistant professor at the University of California, Irvine, law school. Porter is a full professor.
In the mailer, Min accuses Porter of exaggerating when she said in a TV ad, “I won $18 billion for homeowners and helped thousands of families keep their homes.” It is true that Porter did not negotiate the National Mortgage Settlement for foreclosure fraud, accomplished by 49 state attorneys general and the federal government. But considering how weak that settlement was, that’s to her eternal credit.
What Porter did before and after the settlement makes her as responsible as anyone for whatever scraps of relief came out of the foreclosure disaster. In 2007, Porter, then teaching law at the University of Iowa, wrote a prescient paper titled “Misbehavior and Mistake in Bankruptcy Mortgage Claims.” She examined public court records in 1,733 bankruptcy cases, finding that in a majority of them, mortgage servicers lacked one or more pieces of documentation required to establish the validity of the debt. That included the note, which was missing over 40 percent of the time. This was an early warning of the breakdown in foreclosure processes, with companies eventually papering over the lack of proof with fictitious mortgage assignments and records. Porter’s study caught the eye of the initial activists who uncovered and exposed Wall Street’s fraudulent foreclosure schemes; she was central to its unmasking.
In 2012, Porter was made independent monitor for the California portion of the settlement. While the national oversight monitor did little but rubber-stamp that banks fulfilled their consumer relief obligations, Porter took a thankless job and transformed it into an activist position. She intervened personally in individual foreclosure cases, responding to over 5,000 complaints from California borrowers. She rewrote communications to homeowners from banks to maximize response rates. She authored half a dozen reports that showed how banks were gaming the system, calling out the cruel practice of dual tracking (when banks negotiate loan terms and pursue foreclosure at the same time) and the “completed” application scam (where banks would capitalize on one missing document to nullify a modification and move to foreclose instead). Nearly 40 percent of the total 83,000 first-lien principal reductions in the settlement, the most sustainable type of modification, happened in California.
So if Porter wants to take credit for winning relief for homeowners and helping families keep homes, she has plenty of evidentiary support.
Meanwhile, Min, while running the Center for American Progress’s Mortgage Finance Working Group in 2011, issued a report calling for “reform” of secondary mortgage giants Fannie Mae and Freddie Mac by replacing them with fully privatized firms that purchase and pool mortgages and sell them to investors. Under the plan, banks could share an ownership stake in the new firms, and the investors would be equipped with a government guarantee against losses. The proposal mirrored the recommendation of the Mortgage Bankers Association, the trade group for the nation’s largest banks.
In other words, the report Min co-authored would have given Wall Street banks the chance to create the same kind of mortgage securities that nearly crashed the economy in 2008, while taxpayers took on all the risk.
Min’s negative barrage seems unusual for someone with the state party endorsement and the support of 13 members of Congress. But political conventional wisdom suggests that candidates attack when they fall behind. A Porter campaign volunteer claims that they received a phone survey testing these negative attacks, along with positive information about Min, a couple weeks before the ads were released.
The Min campaign would not confirm the push poll, and when presented with a list of questions, forwarded a press release with more detailed information about the attack ads.
That press release suggests that Min’s opponents started the cycle of negativity. “Katie Porter and Brian Forde have been making outrageous and false personal attacks against Dave Min for months, even going so far as to say he physically assaulted women,” writes Min campaign manager Paige Hutchinson, as opposed to Min’s “positive agenda.”
This appears to refer to allegations that Min’s campaign intimidated Forde and Porter staffers who were trying to collect signatures to derail Min’s state party endorsement at the February convention. The Intercept covered those allegations here; Min’s campaign has denied them.
Min’s campaign also brings up a Huffington Post article where Porter recounted her harrowing history as a victim of domestic violence, including getting a restraining order against her ex-husband. Porter alleged that this had become the subject of a whisper campaign in the race initiated by Min’s campaign, with rumors passing among state party delegates that “something in her divorce records might disqualify her in the general election.” A tweet from a Min donor referring to the candidate as “Restraining Order” Porter seemed to provide an example of this. Min has strongly denied any involvement in a whisper campaign.
The timing of the negative ads suggest that they were in motion well before the Huffington Post story. That story was published Friday, May 11, and the ads were out the following Monday, May 14. “When you place TV, you have to ship and place the Thursday before the ad starts running,” said Porter campaign manager Erica Kwiatkowski.
Porter has demanded that Min take down the negative ads. “This type of campaigning has no place in the Democratic party,” she wrote in a statement, calling the questioning of her consumer protection attorney ballot designation “a sexist attack that is all too common in politics.”
Min has been criticized within the district for lashing out at Democrats. At a candidate forum in the district this week, Min responded to questions about the negative attack ads. “None of the claims we’ve made are untrue, they’re all factually correct, they’re not personal attacks,” Min said to a chorus of boos and shouts. “It’s not factual to claim that I am assaulting people, that I am starting whisper campaigns.”
Update: May 25, 2018, 10:30 a.m.
This piece was updated to include campaign fundraising amounts from newly released Federal Election Commission reports for California’s 45th Congressional District. The piece also was updated to include a photo of a mailer from Dave Min’s campaign.