BILL ANALYSIS
AB 1207
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Date of Hearing: January 10, 2006
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Tom Umberg, Chair
AB 1207 (Yee) - As Amended: January 4, 2006
SUBJECT : Code of Fair Campaign Practices.
SUMMARY : Adds a provision to the Code of Fair Campaign
Practices (Code), to which candidates may voluntarily subscribe,
that a candidate will not use or permit any appeal to negative
prejudice based on sexual orientation or gender identity.
EXISTING LAW :
1)Establishes the Code for the purposes of giving voters
guidelines in determining fair play and to encourage
candidates to discuss issues instead of untruths or
distortions. The Code asks candidates to voluntarily pledge
to do the following:
a) To conduct campaigns openly and publicly;
b) To refrain from using or permitting the use of character
defamation of any candidate;
c) To refrain from using or permitting any appeal to
negative prejudice based on race, sex, religion, national
origin, physical health status, or age;
d) To refrain from using on permitting any dishonest or
unethical practice which tends to corrupt or undermine the
American system of free elections;
e) To refrain from coercing election help or campaign
contributions from employees;
f) To immediately and publicly repudiate support deriving
from any individual or group which resorts to methods and
tactics condemned by the candidate; and
g) To defend and uphold the right of every qualified
American voter to full and equal participation in the
electoral process.
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2)Provides that the elections official shall give an individual
a blank form of the Code at the time the individual is issued
his or her declaration of candidacy or nomination papers.
3)Requires the elections official to accept, at all times prior
to the election, all completed forms of the Code and to retain
those forms for public inspection until 30 days after the
election.
4)Provides that a candidate for public office may not be
required to subscribe to or endorse the Code.
FISCAL EFFECT : According to an Assembly Appropriations
Committee analysis of a substantially similar bill from last
year, "[m]inor absorbable costs for the Secretary of State to
revise and provide to local elections officials copies of the
revised Code."
AB 1207
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COMMENTS :
1)Purpose of the Bill : According to the author:
In the politically divisive debate over the rights of LGBT
people, there are many instances of candidates and
campaigns using a negative appeal for support using
anti-gay rhetoric. These negative appeals are potentially
dangerous to LGBT people, and in some campaigns these have
led to an atmosphere of fear, intimidation, and instances
of violence.
Anti-gay rhetoric, which often comes in the form of
political hate messages, is directly connected to violence
against gay and lesbian individuals. Incidents of violence
against gays and lesbians peaked in 1992, during the
presidential campaign, in which lesbian and gay issues
played an unprecedented role at both the national and local
levels. Anti-gay messages became part of the 1996
campaigns which may lead to more violence. These issues
continue to this day. Appeals to prejudice of any kind
should not be part of the political process.
2)First Amendment Considerations : The First Amendment to the
United States Constitution, made applicable to the states by
the Due Process Clause of the Fourteenth Amendment, provides
in relevant part "Congress shall make no law . . . abridging
the freedom of speech. . . ." Similarly, Section 2 of Article
I of the California Constitution provides in relevant part
"Every person may freely speak, write, and publish his or her
sentiments on all subjects, being responsible for the abuse of
this right. A law may not restrain or abridge liberty of
speech or press."
In subscribing to the Code, candidates voluntarily agree to
limit their speech. For instance, by subscribing to the Code,
candidates pledge not to use character defamation against
other candidates and not to appeal to negative prejudice based
on race, sex, religion, national origin, physical health
status, or age. This bill would add to the Code that
candidates who subscribe pledge not to appeal to negative
prejudice based on sexual orientation or gender identity. To
the extent that a candidate's decision to sign or to refuse to
sign the Code is voluntary, the Code likely does not
impermissibly restrict a candidate's freedom of speech.
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However, when a law coerces candidates to subscribe to the
Code, and thus to restrict their speech, that law may be
unconstitutional. Because this bill simply adds a provision
to the Code, it does not coerce a candidate to subscribe to
the Code beyond any inherent coercive effect that the Code
already has. Thus, it is unlikely that this bill, in and of
itself, would be considered to violate the First Amendment.
3)Arguments in Opposition : In opposition to this bill, Concerned
Women for America writes:
AB 1207 is a direct challenge to free speech, as well as to
the religious and moral beliefs of persons running for
public office. It would create separate categories of
candidates who are and who are not willing to sign the
voluntary campaign statement and thereby render those who
do not as potential targets for ridicule. . .
AB 1207 stifles public discourse on some of the most hotly
contested current issues in our state and nation, including
same-sex "marriage." During an election campaign,
candidate views on such topics represent an integral part
of the political process and critical information for the
voting public.
4)Previous Legislation : AB 2283 (Kuehl) of 1996, would have
added a provision to the Code that a candidate will not use or
permit any appeal to negative prejudice based on sexual
orientation. AB 2283 failed passage in this committee.
AB 866 (Yee) of 2005 was identical to this bill except that this
bill contains grammatical changes that were not contained in
AB 866. AB 866 was vetoed by Governor Schwarzenegger, who
stated in his veto message that the Code is unenforceable by
any means other than the exercise of the vote at the ballot
box, and expressed his confidence that voters will "reject
candidates that use appeals to negative prejudices against any
group of people."
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
AB 1207
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Opposition
Concerned Women for America
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094