BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Debra Bowen, Chair
BILL NO: AB 709 HEARING DATE:
6/28/06
AUTHOR: WOLK ANALYSIS BY:Darren
Chesin
AMENDED: 6/28/05
FISCAL: YES
DESCRIPTION
Current law , pursuant to Proposition 34 of 2000, limits
campaign contributions to candidates for elective state
office as follows, subject to biannual adjustment for
inflation:
To a candidate for elective state office other than a
candidate for statewide elective office, no person may
contribute more than $3,300 per election and no small
contributor committee may contribute more than $6,700 per
election;
To a candidate for elective statewide office other than a
candidate for Governor, no person may contribute more
than $5,600 per election and no small contributor
committee may contribute more than $11,100 per election;
To a candidate for Governor, no person or small
contributor committee may contribute more than $22,300
per election.
This bill imposes a $5,600 campaign contribution limit,
subject to adjustment for inflation, on ballot measure
committees that are controlled by candidates for state
elective office. Specifically, this bill:
Prohibits a person from making to any ballot measure
committee controlled by a candidate for elective state
office any contribution totaling more than $5,600 during
the entire period of time the candidate controls the
committee, and prohibits any ballot measure committee
controlled by a candidate for state elective office from
accepting such a contribution.
Provides that a ballot measure committee primarily formed
to support or oppose a ballot measure or measures and
controlled by a candidate for state elective office is
subject to a provision of state law limiting the amount
of post-election fundraising to the net debts outstanding
to the committee. This provision does not apply to a
general purpose ballot measure committee.
Current law provides that the Political Reform Act may be
amended to further its purposes by a two-thirds vote in
each house of the Legislature or by approval of the
electorate.
This bill states that it would appear for voter approval on
the November 8, 2005 statewide special election ballot.
BACKGROUND
Proposition 34 . At the November 2000 General Election,
voters approved Proposition 34 with 60.1% of the vote.
Proposition 34 revised state laws on political campaigns
for state elective offices and ballot propositions, most
notably by establishing new contribution and voluntary
campaign spending limits for state elective offices.
Proposition 34 placed no contribution limits on ballot
measure committees.
Distinction Between Limits on Candidates and Ballot
Measures . The U.S. Supreme Court has made a distinction
between limits on campaign contributions made to candidates
and limits on campaign contributions made to ballot measure
committees. In Buckley v. Valeo (1976), the Supreme Court
upheld contribution limits placed upon candidates,
acknowledging the state interest of preventing corruption
or its appearance. However, in Citizens Against Rent
Contro l v. City of Berkeley (1981), the Court found no such
risk of corruption exists when contributions are given to
ballot measure committees. Accordingly, the Court struck
down a City of Berkeley ordinance that placed a $250
contribution limit on ballot measures committees.
The ballot measure committee at issue in Citizens Against
Rent Control wasn't candidate-controlled, however. This
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bill seeks to regulate contributions made to
candidate-controlled ballot measure committees, and doesn't
restrict contributions made to non-candidate controlled
committees similar to the one in Citizens Against Rent
Control .
FPPC Action . On June 25, 2004, the FPPC adopted new
regulations governing contributions to ballot measure
committees controlled by elected state officers and
candidates for state elective office. Under those
regulations, contributions to a ballot measure committee
that is controlled by a candidate for elective state office
are limited to the Proposition 34 contribution limits that
applied to the individual's candidate committee at the time
the candidate took control of the ballot measure committee.
If the candidate has more than one state candidate
committee, the limit for the committee with the higher
contribution limit applies.
On February 9, 2005, Citizens to Save California and
Assemblymember Keith Richman filed suit against the FPPC
challenging these regulations. The plaintiffs claimed the
regulation adopted by the FPPC was illegal for several
reasons, including that the FPPC lacked the authority to
adopt the regulation and that the regulation violates the
First Amendment to the United States Constitution. On
March 23, 2005, Sacramento Superior Court Judge Shelleyanne
Chang, issued a tentative ruling in Citizens to Save
California v. FPPC in favor of the plaintiffs, finding that
the FPPC's regulations were "inconsistent with the
[Political Reform Act (PRA)]" and therefore "exceed the
FPPC's rulemaking authority." Judge Chang also ruled the
regulation "unreasonably impairs and chills the
associational rights of candidates and those directing a
committee who would otherwise desire to consult with them."
Judge Chang upheld that tentative ruling on March 25,
2005, thus invalidating the FPPC's regulations limiting
campaign contributions to ballot measure committees that
are controlled by candidates for elective state office. As
a result of that decision, there are currently no
contribution limits on ballot measure committees - whether
controlled by a candidate for elective state office or not.
The parties to the case have completed their appellate
briefing and are waiting for a hearing date to be
scheduled.
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This bill essentially codifies the FPPC regulations that
were struck down by the court in Citizens to Save
California , with one key difference - this bill would
change the amount of money that a candidate-controlled
ballot measure committee could receive from any single
contributor. Under the FPPC regulations, a
candidate-controlled ballot measure committee could receive
contributions of up to $3,300 if the candidate controlling
the committee was a candidate for the Legislature or the
Board of Equalization, up to $5,600 if the candidate was a
candidate for elective statewide office other than a
candidate for Governor, and up to $22,300 if the candidate
was a candidate for Governor. Under this bill, the same
$5,600 limit would apply to all candidate controlled ballot
measure committees, regardless of the office sought by the
candidate for state elective office.
It's unclear whether a court would uphold the provisions of
this bill when a similar regulation was struck down in
court. In the decision in Citizens to Save California ,
Judge Chang indicated her ruling was based in part on her
determination that the FPPC didn't have the statutory
authority to adopt a regulation limiting contributions to
ballot measure committees that are controlled by candidates
for elective state office. However, Judge Chang also
expressed concerns about the constitutionality of the
regulation, concerns that presumably would be equally
applicable to a statutory limit on contributions to ballot
measure committees that are controlled by candidates for
elective state office.
COMMENTS
1.Late for the Prom . This bill states that it would appear
for voter approval on the November 8, 2005 statewide
special election ballot. The author and committee may
wish to consider amending this bill to provide for a
different election date or deleting the requirement that
it appear on the ballot altogether.
2.Is Proposition 34 Being Circumvented ? Proponents of this
bill believe that since voter approval of Proposition 34
in November 2000, the growing use of ballot measure
campaigns by state elective office candidates represents
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a disturbing trend toward circumventing the candidate
contribution limits. In some of these instances,
unlimited contributions are used to fund ballot measure
ads featuring the state elective office candidate,
offering the ancillary benefit of improving voter
awareness of the featured candidate. Even when the
ballot funds aren't used to pay for ads featuring the
controlling candidate, these contributions - often in
amounts many times the limit applicable to the candidate
under Proposition 34 - represent a clear opportunity for
"corruption or the appearance of corruption," to use the
language of Buckley v. Valeo .
3.But What About Proposition 34's "Issue Ad" Language ?
Current law provides that any person who makes a payment
totaling $50,000 or more for a communication that clearly
identifies a candidate for elective state office, but
does not expressly advocate the election or defeat of the
candidate, and that is disseminated, broadcast, or
otherwise published within 45 days of an election, must
file online or electronically with the Secretary of State
a report disclosing the name of the person, address,
occupation, and employer, and amount of the payment. The
report must be filed within 48 hours of making the
payment or the promise to make the payment. Furthermore,
any payment received by a person who makes such a
communication is subject to a contribution limit, which
currently stands at $27,000 per calendar year, if the
communication is made at the behest of the clearly
identified candidate. A candidate-controlled ballot
measure committee paying for communications that clearly
identify the controlling candidate would be subject to
this contribution limit. If however, the
controlling/clearly identified candidate isn't appearing
on the ballot within the 45-day time frame, the limits
would not apply.
4.What is a Controlled Committee ? "Controlled committee"
means a committee that's controlled directly or
indirectly by a candidate or state measure proponent or
that acts jointly with a candidate, controlled committee,
or state measure proponent in connection with the making
of expenditures. A candidate or state measure proponent
controls a committee if he or she, his or her agent, or
any other committee he or she controls has a significant
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influence on the actions or decisions of the committee.
However, a political party committee, as defined, is not
a controlled committee.
5.Is This Bill Equitable ? Under this bill, ballot measure
committees that aren't controlled by a state officeholder
or candidate for state office will be free to raise
contributions without regard to any limits. Ballot
measure committees controlled by a state officeholder or
candidate for state office will be subject to a
contribution limit that currently stands at $5,600.
Hence, if an initiative qualifies for the ballot that
seeks to weaken the power of a branch of state
government, the proponents could accept huge, unlimited
contributions from any legal source while the target of
the measure (e.g., legislators or other state
officeholders) would find themselves at a severe
fundraising disadvantage.
6.Prior Legislation . The August 13, 2004, proposed
Conference Committee Report of AB 1980 (Wolk) of 2004 was
substantially similar to this bill. That Conference
Committee Report was adopted in the Senate by a vote of
33-1, but failed in the Assembly by a vote of 50-29 (54
votes were required for passage).
7.If At First You Don't Succeed . This bill was defeated in
this committee on a 1-3 vote on July 13, 2005.
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PRIOR ACTION
Assembly Elections and Redistricting Committee 4-2
Assembly Appropriations Committee 12-5
Assembly Floor 46-31
Senate ER&CA Committee 1-3
POSITIONS
Sponsor: Author
Support: California Common Cause
California Public Interest Research Group
(CalPIRG)
Fair Political Practices Commission
Oppose: None received
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