BILL ANALYSIS Ó
AB 651
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Date of Hearing: March 29, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 651 (Hueso) - As Amended: March 22, 2011
SUBJECT : Initiatives: paid circulators.
SUMMARY : Requires a person who is paid to gather signatures on
an initiative, referendum, or recall petition to wear a badge
that indicates the name of the person's employer. Requires
professional petition firms, as defined, to register with the
Secretary of State (SOS). Specifically, this bill :
1)Requires an individual who receives compensation to circulate
an initiative, referendum, or recall petition to identify him
or herself as a paid signature gatherer by wearing a clearly
visible badge on his or her chest stating "EMPLOYED BY"
followed by the name of the employer.
2)Requires the print on the badge to be in at least 30-point
type, and makes violation of this provision an infraction
punishable by a fine of not more than $500.
3)Defines the term, "professional petition firm," as an entity
that pays individuals to circulate petitions and gather
signatures for the purpose of qualifying an initiative for a
state or local election ballot.
4)Requires a professional petition firm to register annually
with the SOS in order to pay individuals to circulate
petitions and collect signatures to qualify an initiative on a
state or local election ballot.
5)Requires the registration of a professional petition firm to
include the full name, address, and partners, owners, or
officers of the firm, and to be accompanied by a registration
fee established by the SOS.
6)Requires the SOS to use the fee revenue to maintain on its
Internet web site a directory of professional petition firms
and to defray any other associated costs with the requirements
of this bill.
7)Requires a member of a professional petition firm to review
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the law relating to obtaining petition signatures with each
paid petition circulator before a paid petition circulator can
obtain any signatures for the firm.
8)Requires a copy of the training materials provided to the
prospective petition firm employees to be submitted by the
firm to the SOS. Requires the firm to submit a statement to
the SOS for each circulator, signed by the circulator and the
individual conducting the review, that the circulator has
received the review.
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EXISTING LAW :
1)Requires every state or local initiative petition to contain a
statement notifying voters of their right to inquire whether
the petition is being circulated by a paid signature gatherer
or volunteer.
2)Establishes a process for proposing initiative measures
submitted to voters in California and sets forth
qualifications for persons who circulate initiative petitions.
3)Provides that a person who is a voter or who is qualified to
register to vote in this state may circulate a state
initiative or referendum petition anywhere within the state.
FISCAL EFFECT : Unknown. State-mandated local program;
contains a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
AB 651 requires professional petition firms to register
with the Secretary of State (SOS) and pay a registration
fee established by the SOS. The bill also allows the SOS
to use the fees collected to maintain an online directory
of professional firms. This bill also requires individuals
who receive a salary to circulate an initiative,
referendum, or recall petition to clearly identify him or
herself as a paid signature gatherer by wearing a clearly
visible badge on his or her chest stating "EMPLOYED BY"
followed by the name of the employer.
The initiative process was designed to allow average
citizens to participate in direct democracy through
grassroots efforts. Ironically, the initiative process is
now heavily influenced by special interest groups. In fact,
the National Conference of State Legislators notes that the
cost of qualifying an initiative for the ballot in
California has risen to more than $1 million. The
consequence is that a system that was once designed as a
grassroots tool for average voters has now become a tool
for special interest groups to avoid the legislative
process. California lacks a mechanism for providing
oversight of professional petition gathering firms. We are
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currently unable to verify whether paid signature gatherers
are provided with information on the laws that regulate
petition gathering. This bill will help ensure that paid
petition gatherers are informed of California law. This
may result in fewer cases of election fraud by paid
petition gatherers. According to the Secretary of State's
Office, there have been 32 convictions on petition fraud
since 1994. According to a report issued by the Center for
Governmental Studies, there are no known cases in the state
of volunteer signature gatherers submitting fraudulent
signatures.
AB 651 will help ensure an open and transparent ballot
initiative process by making information about professional
petition firms available on the Secretary of State's
Website directory. Many voters will find it valuable to
know whether a petition is being supported by grassroots
organizations or special interest groups that have paid to
qualify an initiative for the ballot. AB 651 will help
educate the public and will not inherently hinder the
ability of organizations to qualify ballot initiatives.
2)United States Supreme Court Jurisprudence : In 1988, the
United States Supreme Court ruled that a Colorado prohibition
against the use of paid circulators for initiative petitions
violated the First Amendment's guarantee of free speech.
Writing for a unanimous court, Justice Stevens noted that
"İt]he State's interest in protecting the integrity of the
initiative process does not justify the prohibition because
the State has failed to demonstrate that it is necessary to
burden appellees' ability to communicate their message in
order to meet its concerns." Meyer v. Grant (1988), 486 U.S.
414.
In 1999, the United States Supreme Court examined a Colorado law
that provided a number of other restrictions on the signature
collection process for ballot initiatives. In that case the
court ruled that there must be a compelling state interest to
justify any restrictions on initiative petition circulation.
Buckley v. American Constitutional Law Foundation (1999), 525
U.S. 182.
In Buckley , the court invalidated Colorado's requirement that
paid petition circulators wear a badge identifying themselves
and identifying that they are paid circulators. The court
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stated that the requirement to wear badges inhibits
participation in the petitioning process. "Because the badge
requirement compels personal name identification at the
precise moment when the circulator's interest in anonymity is
greatest, it does not qualify for inclusion among 'the more
limited İelection process] identification requirementİs]."
The Buckley court did not rule on the validity of the
requirement that a circulator wear a badge stating whether a
petition circulator was paid or a volunteer.
3)Legislative Counsel Opinion : In an April 17, 2001, opinion,
Legislative Counsel opined that a statute to require an
individual circulating a petition to disclose (verbally or by
a sign, pin, badge, hat, or other indication) whether the
individual is paid to circulate the petition is valid under
the California and United States Constitutions. In its
analysis, Legislative Counsel wrote "in our view the
disclosure of the paid or unpaid status of the petition
circulator at the time of circulation properly may be
characterized as the least drastic means to accomplish the
substantial state interest of enabling potential petition
signers to assess the sincerity of circulators."
4)Arguments in Support : The SOS has taken a support if amended
position on this bill. The first proposed amendment from the
SOS would replace the requirement that a paid circulator wear
a badge stating whom he or she is employed by with the
requirement that a paid circulator wear a badge with the
statement "Paid Signature Gatherer," instead. In addition,
the SOS has requested an amendment to require both paid and
volunteer circulators wear a badge designating whether or not
they are being compensated.
In support of the goal of this bill, the SOS argues that
although current law gives a person the right to inquire as to
whether the person circulating the petition is paid or is a
volunteer, not all people are aware of this right, let alone
exercise it. The SOS notes that the badge-wearing
requirement, with the proposed amendments, would promote
fairness and transparency. Furthermore, the SOS states that
the provisions in this bill related to petition firms are
designed to ensure that they appropriately educate their
employees about how to comply with the law and will
potentially decrease fraudulent or illegal practices in
signature gathering.
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5)Arguments in Opposition : The Capitol Resource Family Impact,
in opposition to this bill, argues that it will stigmatize and
neutralize groups as well as paid signature gatherers who seek
to place a referendum or initiative or have a recall on the
ballot. They argue that the requirement of firms to register
with the SOS is an assault to California's direct initiative
process and that current law, which allows an individual
approached by a signature gatherer to ask whether they are
paid to collect signatures or not, is sufficient.
6)Constitutional Issues and Suggested Amendments : According to
the Legislative Counsel opinion discussed above, the state
interest implicated by the provision in this bill that
requires the badge worn by signature gatherers to identify the
person or entity that is paying the circulator is that of
providing "a control or check on domination of the initiative
process by affluent special interest groups." However, the
Legislative Counsel wrote "in our opinion, this state interest
alternatively could be accomplished by a less restrictive form
of regulation?thus, we conclude that disclosure of this
information?would be invalid."
In light of concerns that these provisions may be deemed
unconstitutional, the author may wish to amend this bill to
require a person who receives compensation to circulate an
initiative, referendum, or recall petition to identify himself
or herself as a paid signature gatherer by wearing a clearly
visible badge on his or her chest stating their paid status
only, and remove the requirement that the badge identify the
employer.
Alternatively, in light of AB 481 (Gordon), also scheduled to be
heard in this committee today, which similarly requires a paid
signature gatherer to wear a badge indicating that he or she
is paid, the author may wish to remove the badge requirement
in this bill altogether, leaving only the requirement that
professional petition firms register with SOS.
7)Related Legislation : AB 481 (Gordon), also being heard in
this committee today, requires a person who is paid for
collecting petition signatures to wear a badge indicating that
he or she is a paid signature gatherer, and requires similar
information be disclosed on any state or local initiative,
referendum, or recall petition.
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SB 168 (Corbett), pending in the Senate Public Safety Committee,
makes it a misdemeanor for a person to pay or to receive money
or any other thing of value based on the number of signatures
collected on a state or local initiative, referendum, or
recall petition.
SB 448 (DeSaulnier), pending in the Senate Elections and
Constitutional Amendments Committee, requires every paid
signature gatherer to wear a badge that indicates that he or
she is paid and discloses whether he or she is registered to
vote and if so, the county in which he or she is registered to
vote.
8)Previous Legislation : SB 1203 (DeSaulnier) of 2010, would
have required a person who is paid to gather signatures on an
initiative, referendum, or recall petition to wear a badge
that indicates that he or she is paid and discloses whether he
or she is registered to vote and if so, the county in which he
or she is registered to vote. SB 1203 was approved by this
committee, but subsequently was gutted and amended for an
unrelated purpose.
AB 6 (Saldana) of 2009, would have required professional
petition firms to register with the SOS and pay a registration
fee. AB 6 was vetoed by Governor Schwarzenegger, who wrote in
his veto message, "The people of California often exercise
their important role in government oversight through the
initiative, referendum and recall process. I cannot support a
measure that places an undue burden on reform-minded
Californians."
REGISTERED SUPPORT / OPPOSITION :
Support
Secretary of State Debra Bowen (if amended)
Opposition
Capitol Resource Family Impact
Analysis Prepared by : Maria Garcia / E. & R. / (916) 319-2094
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