Kamala's Way

by Dan Morain

  Money matters in any campaign, especially in down-ballot state races, which attract much less media attention and voter interest than races for governor or U.S. senator. Harris had no independent source of wealth and certainly didn’t inherit a fortune from her mother’s modest estate. Her most worrisome primary opponent was the self-funding former Facebook attorney Chris Kelly. Kelly, a first-time candidate, ultimately spent $12 million through the June primary, double what Harris spent in the entire race.

  Harris brought with her advantages: she had run twice in the meat grinder that is San Francisco politics, had name identification in the Bay Area because she regularly was on the evening news and in the Chronicle, and was the only prosecutor among the six Democratic primary candidates.

  Significantly, Harris’s internal polling reflected a shift in public attitudes. Voters who had approved the harsh three-strikes law in 1994 were turning away from the lock-’em-up philosophy of Pete Wilson and were open to an alternative. Having laid out her philosophy of diversion, education, drug treatment, and rehabilitation in her book Smart on Crime, Harris portrayed herself as a prosecutor who supported criminal justice reform.

  “People saw the prison system as a revolving door, and people weren’t getting corrected,” Ace Smith said. “It was perhaps the first major election where someone ran on that idea of criminal justice reform.”

  Harris got a boost in October 2009 when the reform-minded Los Angeles police chief William Bratton, the most popular person in law enforcement in Cooley’s home county, endorsed her. It was the most significant law enforcement endorsement she would receive and helped validate her credentials as a law enforcement official.

  The good news was tempered by tragedy.

  Lili Smith, the precocious girl with Apert syndrome who helped stuff envelopes and hand out brochures in Harris’s first district attorney’s race, had turned fifteen, an age when appearances and fitting in become all-important. In the Marin County schools she attended, other kids didn’t bully or tease her. But they did ignore her and she was becoming socially isolated. She and her parents, Ace Smith and Laura Talmus, decided to try a boarding school, Scattergood Friends School in rural West Branch, Iowa. There, she was finding community and acceptance, and excelling.

  She had been reading the autobiography of Cherie Blair, the wife of former British prime minister Tony Blair, after having finished the biography of United Farm Workers cofounder Dolores Huerta. On October 9, she called her mom and left a message saying they’d speak in the morning.

  That night, she had a seizure and died.

  Harris was spending time off the campaign trail when she got a call from one of Smith’s partners, Dan Newman, telling her of Lili’s passing. Ace Smith and Laura Talmus were important parts of Harris’s political operation. But they were also part of her tight circle of friends. Harris quickly got on a flight to San Francisco to sit shivah with Lili’s parents at their Marin County home.

  Nothing is worse than the loss of a child. But Talmus and Smith turned their grief into good by creating a charity, Beyond Differences, which develops a curriculum used in schools nationwide to help combat social isolation. They also learned something about Harris’s way of caring. In the years since Lili’s death, Harris has not missed calling on birthdays and Mother’s Days and has been available to help raise money for the cause of Beyond Differences in Lili’s name.

  * * *

  On primary night, June 8, 2010, Harris piled up huge margins in San Francisco and Alameda Counties and won in Los Angeles County. Statewide, she beat her nearest opponent by more than two to one; Chris Kelly placed third.

  Steve Cooley’s primary fight was tougher.

  His main challenger was John C. Eastman, the dean of Chapman University’s Dale E. Fowler School of Law in Orange County and a former clerk to Justice Clarence Thomas. Eastman’s chief strategist, Frank Schubert, had overseen the “Yes on Proposition 8” campaign to ban same-sex marriages in 2008. Eastman supported that measure. Later, he would be one of the lawyers who filed briefs before the Supreme Court urging that the so-called traditional marriage initiative be deemed constitutional, and would become chairman of the National Organization for Marriage, the main organization devoted to ending same-sex marriage.

  Eastman, the Tea Party favorite in California, attacked Cooley over his government pension, citing a calculation that Cooley, who had thirty-six years of Los Angeles County service, could receive an annual pension of $292,000. With the attorney general’s pay, Cooley could be collecting $425,000 if he won. Pensions were a raging issue at the time, especially in Southern California. Authorities were investigating Bell, a poor Los Angeles County town of thirty-seven thousand populated by immigrants, where city leaders were looting the treasury. The city administrator collected an annual salary of $787,637 and stood to collect a huge pension. The Bell scandal was front-page news. Cooley was not doing anything wrong. Indeed, his office was overseeing the corruption investigation of Bell. Eastman ultimately placed a distant second. But the issue of Cooley’s pension did not go unnoticed.

  12 Change Comes to California

  Attorneys general go by the initials AG. People who seek the office know the truth: AG stands for “aspiring governor.” San Francisco district attorney Kamala Harris undoubtedly was interested in running for an office beyond attorney general—perhaps governor, or U.S. senator. Los Angeles County district attorney Stephen Cooley, for his part, had no apparent interest in running for any office beyond attorney general.

  The son of an FBI agent, Cooley was a sad-eyed, gray-haired man who looked like he had seen it all, and he had. At least, he knew the awful things people could do to other people, a brutal reality reflected in certain statistics. Between the time he took office as Los Angeles district attorney in 2000 and 2010, when he ran for California attorney general, Cooley’s deputies obtained death sentences against fifty-nine men and three women, more than half of all murderers sentenced to death during that period in California. In San Francisco, it had been more than twenty years since anyone had been sentenced to death.

  To the public and reporters covering him, Cooley came off as authentic, a prosecutor to the core. He took a progressive stand by urging the softening of California’s extreme three-strikes sentencing law, and he seemed to be about as nonpartisan as politicians come. He also made news by regularly bringing public corruption cases against shady Southern California politicians, an issue that played well with editorial boards. Most endorsed Cooley over Harris, including mine, the Sacramento Bee.

  “Against almost any other opponent, she would easily win our endorsement,” the Bee opined in an editorial that I took the lead in writing. “But because of his standing in the law enforcement community, Cooley has greater potential to spark a much needed overhaul of California’s sentencing system and to take bold action against public officials who abuse the public trust.”

  Cooley, citing Harris’s refusal to seek the death penalty against the shooter of Isaac Espinoza, emphasized his support for capital punishment and Harris’s opposition. Officer Espinoza’s parents and widow endorsed Cooley, and police unions ultimately spent $1.5 million to elect Cooley.

  Cooley’s support of and Harris’s opposition to the death penalty undoubtedly resonated in some parts of the state, but not in the Bay Area where Harris was especially strong. Harris blunted the attack by saying she would enforce the law, her personal opinion notwithstanding. This matched a long tradition of prosecutors in California who personally opposed the death penalty but enforced it nonetheless. For example, John Van de Kamp, a former public defender, was attorney general in the 1980s, and although he was a moral opponent of capital punishment, his deputies repeatedly defended death sentences and the death penalty itself before the state supreme court.

  Cooley was the front-runner, and pundits bet on him winning. Garry South, one of the most accomplished strategists of his time, predicted Harris would lose to Cooley and enumerated the reason for his thinking at a foru
m at the University of California, Irvine: “When you have a woman who is a minority, and who is anti–death penalty, who is the district attorney of wacky San Francisco.”

  That was four strikes, and it was the conventional wisdom.

  Events were breaking Cooley’s way. In September, Los Angeles County sheriff’s deputies arrested eight Bell city officials. Cooley was the one who announced the charges, telling the Los Angeles Times: “This, needless to say, is corruption on steroids.” Even former attorney general Bill Lockyer, a Democrat, predicted Harris would lose, though he had endorsed her and donated to her campaign. Cooley outraised Harris between the June primary and the November general election by more than $500,000 and was receiving far more money than Harris from donors from outside California. That was a clue that the race was taking on broader significance.

  Cooley recalled that his campaign strategist explained the politics of the race: “This is not about Kamala Harris running for attorney general. It is all about her being vice president.” Cooley dismissed the notion.

  * * *

  Cooley may have been underestimating Harris. But savvy Republican strategists weren’t. In October, the Virginia-based Republican State Leadership Committee stepped in, and suddenly the race for California attorney general became nationalized. Its chairman, Ed Gillespie, had been a top strategist for President George W. Bush and was a former Republican National Committee chairman. The committee spent more than $1 million on a pointed statewide television ad in which Renata Espinoza criticized Harris for failing to seek the death penalty against her husband’s killer.

  The content of the ad had little to do with the motive for airing it. Republican strategists were saying that the GOP saw Harris as a potential national candidate and wanted to end her career before she could step onto the national stage. They also believed a Republican attorney general in California could serve as a bulwark against the Obama administration.

  The next attorney general surely would have to take a stand on the Affordable Care Act, President Obama’s signature domestic policy achievement, either by suing to unravel it or by defending it in court. The Republican State Leadership Committee raised more than $30 million that year, much of it from the health insurance industry and other groups critical of the health care law. Harris promised to do whatever she could to defend the ACA, also known as “Obamacare.” Cooley was noncommittal.

  In the years to come, Republican attorneys general from Texas and other red states would take the lead in lawsuits to invalidate the health care act, which covers nearly forty million Americans. Under Harris and her successor, Xavier Becerra, California has led Democratic states in defending the law. Answering the Republican State Leadership Committee’s effort, Obama came to California to help Harris, further elevating the profile of the race. Obama told a Los Angeles audience that she was his “dear, dear friend” and headlined a fund-raiser for her in the wealthy enclave of Atherton, south of San Francisco. She was the one state candidate for whom he raised money in the 2010 election.

  As Election Day neared, Meg Whitman and other Republicans faltered. That left Cooley as the one Republican with a decent chance of winning. To lock in that victory, Cooley’s San Diego–based campaign manager, Kevin Spillane, turned to one of the Republican wisemen, Joe Shumate, a strategist who had advised Pete Wilson, John McCain, Arnold Schwarzenegger, and Russian president Boris Yeltsin in a campaign depicted in the film Spinning Boris (the trim actor Liev Schreiber played Shumate, a man who was extra-extra large). Shumate, a pioneer in the use of computer analysis to microtarget voters, planned to place ads aimed at voters in specific media markets. By October 1, time was running short, and Shumate wasn’t answering his phone, which was unlike him. Spillane became alarmed and called a friend to check on him. He was in his Sacramento apartment, dead of a heart attack. The ads he envisioned never aired.

  * * *

  It’s a fact of California politics that while most Californians live in Southern California, Northern Californians are more attuned to politics and vote in greater percentages. That benefited Harris. She and her campaign team also knew how to throw a punch, as they had demonstrated many times. Under the headline “Corruption Fighter Accepted Many Gifts,” the Chronicle detailed gifts of Scotch whisky, wine, cigars, and Lakers tickets Cooley had accepted. The gifts became an ad attacking Cooley. But the big attack was yet to come.

  Cooley agreed to one debate, held on October 5, 2010, at the UC Davis School of Law. The two candidates showed themselves to be smart, quick, deft, and very different from each other.

  Harris made it clear she would refuse to defend Proposition 8, the initiative approved in November 2008 that banned same-sex marriage and led to litigation that went to the California and U.S. Supreme Courts. As attorney general, Jerry Brown refused to defend it, as did Governor Schwarzenegger. That left the proponents of the initiative to hire their own lawyers and defend it. On August 4, 2010, U.S. District Judge Vaughn Walker struck down Proposition 8, ruling that it “cannot withstand any level of scrutiny under the Equal Protection Clause.” If she were elected, Harris said, she, too, would refuse to defend it.

  “Now that Proposition 8 has been found to be unconstitutional by a federal district court judge, we should not use the precious resources of the State of California to defend a law that is unconstitutional. I agree with that decision and I support it,” Harris said at the October 5 debate.

  Cooley countered that voters had spoken and their will “should be defended by the California attorney general whether the attorney general believes in it or not.” Schwarzenegger and Attorney General Jerry Brown were “abandoning their responsibilities” by refusing to defend the state, Cooley said.

  They clashed over the environment, too. In 2006, Schwarzenegger signed landmark legislation intended to combat climate change by requiring that Californians vastly reduce greenhouse gas emissions. No other state had taken such a step. The law would in time impose added costs on oil refineries, food processors, factories of all kinds, and gasoline, with a goal of persuading people to find alternatives. In 2010, oil companies and coal producers were the main funders of a $10 million campaign for an initiative endorsed by the California Republican Party that would have killed the measure by delaying its execution. Cooley took no stand on the initiative. Harris was an out-front opponent. More than that, she attacked Cooley for failing to state his position.

  “I don’t think we can be selective about what we choose to render an opinion about or not based on perhaps what it might cost us in terms of political risk,” Harris said at the debate. Turning to Cooley, she dug a little deeper: “Take on some risk. You can do it.”

  Later, Harris would not follow her own counsel. Once in office, she refused to take stands on ballot measures. But in 2010, she was on the side of the electorate. The oil- and coal-backed measure failed, receiving less than 39 percent of the vote.

  Their differences over marriage equality, climate change, and the death penalty aside, the most telling moment of the debate came when one of the questioners, Jack Leonard, of the Los Angeles Times, asked Cooley whether he would collect the attorney general’s pay and “double dip” by taking his Los Angeles County pension if he were to win on November 2, 2010. The issue was fraught with political risk. Cooley should have assumed the question would come up, after Eastman had raised it in the primary and since Cooley’s own office was prosecuting officials from the city of Bell. He was forthright, if abrupt: “I earned it, thirty-eight years of public service. I definitely earned whatever pension rights I have and I will certainly rely on that to supplement the very low, incredibly low salary of state attorney general.”

  Harris, seeing the answer for the blunder that it was, responded, “Go for it, Steve.” With a “gotcha” laugh, she added, “You’ve earned it; there’s no question.”

  Harris had been spending her time in Los Angeles, trying to chip away at Cooley’s base, campaigning across the city with a young African American aide, London Breed, n
ow the mayor of San Francisco. With the election less than a month away, Harris poured all her money into an ad buy in the Los Angeles television market. The focus of the ad: Cooley’s answer on the pension question. The attack was withering and had its intended effect.

  * * *

  In 2010, the year of the Tea Party, a red wave washed over the nation. Republicans made historic gains in state houses and in the U.S. House of Representatives. But the wave stopped on the eastern slope of the Sierra Nevada. Jerry Brown easily defeated billionaire Meg Whitman. Only the Harris-Cooley race was in doubt. On election night, Cooley declared victory. The San Francisco Chronicle had a “Dewey Defeats Truman” moment, running an online headline declaring Cooley had won. Cooley even handed out ATTORNEY GENERAL COOLEY lapel pins. But California’s secretary of state takes weeks to count mail-in and provisional ballots. In the six most-populous Bay Area counties, Harris beat Cooley by almost two to one, by 533,500 votes. In Los Angeles County, which should have been Cooley’s stronghold, Cooley lost by 315,000 votes.

  When all the 9.6 million-plus votes were tallied at the end of November, Harris had won by 74,157 votes. She became the first woman, the first Black person, and the first person of Indian descent to become California’s top cop. Change had come to California.