Francis Chung/POLITICO via AP Images
Rep. Adam Schiff (D-CA) speaks with reporters as he departs a House Democratic Caucus meeting at the U.S. Capitol, October 3, 2023.
Because of an obscure quirk in California election laws, the death of Dianne Feinstein is a gift to big-money interests trying to get their preferred candidate into the U.S. Senate. They can now double the amount they give to an individual campaign.
Feinstein’s death on September 29 led to Gov. Gavin Newsom naming a replacement, former EMILY’s List president Laphonza Butler. But Butler will only serve until Election Day 2024. Under state law, a special election must be held to serve out the remainder of Feinstein’s term, from Election Day until the new session of Congress on January 3, 2025. That special election will appear on the same ballot as the regularly scheduled election for a six-year term for the seat.
This is a replay of what happened last year in California, when Alex Padilla replaced Kamala Harris as she ascended to the vice presidency. There were two primary elections on the ballot and two general elections. Padilla only had token competition, so it had no bearing on the outcome. The special election saw a drop-off of about 72,000 votes (out of 10.8 million cast) from the regular election; more Democratic voters dropped off than Republicans. Padilla won his six-year term with 61.1 percent of the vote, and won the two-month special election with 60.9 percent of the vote.
Today, Feinstein’s seat is being fiercely contested by three House Democrats, and potentially by Butler herself. All these candidates can choose to appear on the ballot twice. This raises some potential for misunderstandings from California’s famously disengaged electorate. “Californians don’t wake up in the morning thinking about politics,” said Darry Sragow, a longtime campaign operative in the state. “There’s a huge amount of confusion surrounding the double ballot. It’s not fair to voters.”
But the far bigger impact is on campaign finance. Because there are two primaries and two general elections, candidates can receive a maximum donation for each race. Under the normal rules, the max donation would be $6,600: $3,300 for the primary and the same for the general. Now, candidates can receive up to $13,200 from an individual to their own campaign, if they appear on the ballot in both races.
Even some longtime political experts in the state were surprised by the implications. “Why is it a special election?” asked Bill Carrick, who has worked for multiple statewide elected officials in California, including Dianne Feinstein. “Talk about a head-scratcher.”
Already, the Senate race was trending toward being the most expensive ever, due to running in a nation-state with nearly 22 million registered voters and several high-cost media markets. Now, candidates can call their most generous donors and tell them they can double their money, increasing the amounts in their campaign war chests.
In general, this will grant the most benefit to the candidate who has received the most money from maxed-out donors: Rep. Adam Schiff. According to Politico, Schiff can receive an additional $3.2 million from the 495 donors who have maxed out to his campaign as of June; Rep. Katie Porter, who uses more of a small-donor strategy, has only 47 maxed-out donors, meaning the maximum benefit to her campaign would be about $310,000.
In general, this will grant the most benefit to the candidate who has received the most money from maxed-out donors: Rep. Adam Schiff.
Those two lead in polling for the primary, where the top two finishers will proceed to the general election regardless of party. They also lead in the money race: As of June, Schiff had $29.8 million cash on hand, and Porter had $10.4 million.
Carrick doesn’t think the two are far enough ahead to put the race out of reach. “Even in the preliminary public polling, Adam’s in the high teens and Katie’s in the mid-teens. A lot of people are not thinking about it.”
Porter supporters have made no secret of who they think benefits from the double max and what it says about the candidates. “While Katie Porter relies on grassroots donors and challenges corporate interests, Adam Schiff has an ongoing financial advantage as the candidate of corporate lobbyists and big-money donors,” said Adam Green of the Progressive Change Campaign Committee, which is supporting Porter. “Every time Schiff dials millionaires to take advantage of this loophole, he hurts democracy and rigs the playing field for the rich and powerful.”
Schiff has been dinged for securing earmarks on behalf of the defense and energy industries, when executives and lobbyists for those companies were donors to his campaigns. This included a $6 million benefit for a company developing sensors for chemical weapons, and another $3 million for a firm making radar systems for the Navy. Porter has sworn off earmarks and says that she doesn’t take corporate PAC money.
Rep. Barbara Lee, who is trailing in polls and has raised a fraction of what Schiff and Porter have raised, has about the same number of maxed-out donors as Porter, according to Federal Election Commission records, and a larger number of people who maxed out just for the primary, whom she could ask to max out for the special-election primary. That could help, but she cannot compete with Schiff on big-money donors. Lexi Reese, a former Google executive, is also running as a Democrat.
The double max has contrasting implications for those not yet in the race. Steve Garvey, the former first baseman for the Los Angeles Dodgers and San Diego Padres, is expected to announce a campaign this week as a Republican; he can immediately ask for $13,200 from individual donors, though he starts out even further behind Schiff and the others. (Garvey has been included in primary polls, and thus far that hasn’t dislodged Schiff and Porter from the top two.)
The same fundraising options would also apply to Sen. Butler, who has not made a decision on whether to run after Newsom’s surprise appointment announcement on October 1. Raising name recognition in the five months before the March primary is a daunting task in California, due to its size and its lack of voter engagement. Butler is well known in insider circles, but “nobody in California has ever heard of her,” Sragow said. A private poll conducted by pollster Christian Grose last week shows a high number of undecided voters in the Senate race, but showed Butler’s support “so low it amounted to statistical ‘noise.’” Butler would find getting herself known, in a state where free media doesn’t move the needle much, to be incredibly expensive.
Butler’s access to EMILY’s List’s political network and state political and labor leaders from her time at SEIU could enable her to raise money quickly, and the double max could accelerate that. “All of the smarty-pants class of political observers are saying that Laphonza doesn’t have enough time to raise some money,” said Carrick. “This will give her the opportunity.”
Her consulting work for Uber and Airbnb could also attract donors in those companies or the tech industry at large. And that work was done through Bearstar Strategies, a firm that lists Harris, Padilla, and Newsom as clients. Not to mention the fact that delivering $13,200 to a sitting senator could prove helpful for any number of corporate interests with business before Congress (though that’s also true of sitting House members).
These donors could always set up an independent expenditure campaign for Butler, but that comes with a certain lack of control. “[The double max] gives you a bigger purse to disburse the way you specifically want to spend,” said Sragow, who has run many statewide campaigns. “That’s a major benefit.”
Schiff and Porter’s campaigns did not respond to a request for comment about the double max; neither did a consulting firm working for Barbara Lee.
Despite state Democrats’ stated opposition to big money, it’s nearly impossible to envision the state changing the law to eliminate the special election. The legislature has wrapped up for the year, and with the March primary, mail-in ballots would be printed sometime around the beginning of 2024. So changing the law would likely require Newsom calling a special session, which would be highly unlikely.
That doesn’t make having two elections, and the attendant benefits for big money, any more understandable. “I think any rational person can look at this (double election) and say, ‘Let’s not do it this way,’” said Sragow. “It doesn’t make sense.”
