BILL ANALYSIS Ó
AB 2146
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Date of Hearing: April 26, 2012
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2146 (Cook) - As Amended: April 16, 2012
SUBJECT : Political Reform Act of 1974: local campaign reform:
County of San Bernardino.
SUMMARY : Permits San Bernardino County and the Fair Political
Practices Commission (FPPC) to enter into an agreement that
provides for the FPPC to enforce a local campaign finance
ordinance enacted by the county. Specifically, this bill :
1)Provides that, upon mutual agreement between the FPPC and the
Board of Supervisors of San Bernardino County, the FPPC is
authorized to assume primary responsibility for the
administration and enforcement of a local campaign finance
ordinance passed by the Board of Supervisors. Provides that
the FPPC is authorized to be the civil prosecutor responsible
for the civil enforcement of such an ordinance. Provides that
as the civil prosecutor, the FPPC may do both of the
following:
a) Investigate possible violations of the ordinance; and,
b) Bring administrative actions in accordance with the
Political Reform Act (PRA) and the administrative
adjudication provisions of the Administrative Procedure
Act.
2)Requires any local campaign finance ordinance for San
Bernardino County that is enforced by the FPPC to comply with
the PRA.
3)Requires the Board of Supervisors of San Bernardino County to
consult with the FPPC prior to adopting and amending any local
campaign finance ordinance that will be enforced by the FPPC.
4)Permits the Board of Supervisors of San Bernardino County and
the FPPC to enter into any agreements necessary and
appropriate to carry out the provisions of this bill,
including agreements pertaining to any necessary reimbursement
of state costs by the county for the costs incurred in
enforcing the county's campaign finance ordinance.
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5)Permits the Board of Supervisors of San Bernardino County or
the FPPC to terminate, at any time, an agreement made pursuant
to this bill for the FPPC to enforce the county's campaign
finance ordinance.
6)Makes legislative findings and declarations as to the
necessity of a special statute for San Bernardino County due
to the need to avoid an appearance of corruption in the
county's electoral process.
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EXISTING LAW :
1)Creates the FPPC, and makes it responsible for the impartial,
effective administration and implementation of the PRA.
2)Requires a local government agency that adopts or amends a
local campaign finance ordinance to file a copy of the
ordinance with the FPPC.
3)Prohibits a local government agency from enacting a campaign
finance ordinance that imposes campaign reporting requirements
that are additional to or different from those set forth in
the PRA for elections held in its jurisdiction unless the
additional or different requirements apply only to the
candidates seeking election in that jurisdiction, their
controlled committees or committees formed or existing
primarily to support or oppose their candidacies, and to
committees formed or existing primarily to support or oppose a
candidate or to support or oppose the qualification or passage
of a local ballot measure which is being voted on only in that
jurisdiction, and to city or county general purpose committees
active only in that city or county, respectively.
4)Provides that nothing in the PRA shall nullify contribution
limitations or prohibitions of any local jurisdiction that
apply to elections for local elective office, except that
these limitations and prohibitions may not conflict with a
specified provision of the PRA dealing with "member
communications."
5)Provides that payments made for communications to members,
employees, shareholders, or families of members, employees, or
shareholders of an organization for the purpose of supporting
or opposing a candidate or a ballot measure, which are
referred to as "member communications," are not contributions
or expenditures, if those payments are not made for general
public advertising such as broadcasting, billboards, and
newspaper advertisements.
6)Makes violations of the PRA subject to administrative, civil,
and criminal penalties.
FISCAL EFFECT : Unknown
COMMENTS :
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1)Purpose of the Bill : According to the author:
Many counties and cities across California have
enacted campaign finance rules to create a level
playing field for candidates and to stem the influence
of "big money" in local politics. As a result, locally
appointed ethics commissions often enforce campaign
finance rules adopted by local governments. The County
of San Bernardino, which has been the subject of
several high-profile corruption cases, is in the
process of developing a campaign finance ordinance
that would establish contribution limits that mirror
those applied to State Senate and Assembly candidates.
Rather than appointing an ethics commission, which
could present financial as well as
conflict-of-interest challenges, the County proposes
to contract with the Fair Political Practices
Commission (FPPC) to enforce the rules.
AB 2146 would authorize the County of San Bernardino
to contract with the FPPC to enforce San Bernardino
County's local campaign finance ordinance. This would
only occur after a mutual agreement between the FPPC
and the San Bernardino County Board of Supervisors has
been reached.
Contracting with the FPPC is an ideal solution for
several reasons. Counties that have ethics commissions
or other formal entities spend as much as $3.5 million
annually to police ethical behavior. Contracting with
the FPPC is a cost effective alternative to an ethics
commission and a prudent use of taxpayer resources.
Additionally, contracting with the FPPC provides
oversight by an impartial and independent third party
and eliminates potential conflict of interest that
could arise from the creation of an internal agency by
the Board of Supervisors.
2)Local Campaign Ordinances and the PRA : Under existing law,
local government agencies have the ability to adopt campaign
ordinances that apply to elections within their jurisdictions,
though the PRA imposes certain limited restrictions on those
local ordinances. For instance, SB 726 (McCorquodale),
Chapter 1456, Statutes of 1985, limited the ability of local
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jurisdictions to impose campaign filing requirements that
differed from those in the PRA, permitting such requirements
only when they applied solely to candidates and committees
whose activity is restricted primarily to the jurisdiction in
question. This provision sought to avoid the necessity of a
candidate or committee active over a wider area being required
to adhere to several different campaign filing schedules.
Similarly, AB 1430 (Garrick), Chapter 708, Statutes of 2007,
prohibits local governments from adopting rules governing
member communications that are different than the rules that
govern member communications at the state level.
Aside from these restrictions, however, local government
agencies generally have a significant amount of latitude when
developing local campaign finance ordinances that apply to
elections in those agencies' jurisdictions. Any jurisdiction
that adopts or amends a local campaign finance ordinance is
required to file a copy of that ordinance with the FPPC, and
the FPPC has begun posting those ordinances on its website.
The FPPC's website currently includes campaign finance
ordinances from 17 different counties and from 130 different
cities.
San Bernardino County currently has a local campaign finance
ordinance, though it is very limited in scope. Specifically,
the ordinance merely establishes a voluntary campaign
expenditure limit for candidates for local office. It does
not provide any incentive for candidates to adopt that
voluntary limit, nor does it establish penalties for
candidates who agree to abide by the voluntary limits but
subsequently make campaign expenditures in excess of those
limits.
Other cities and counties have adopted campaign finance
ordinances that are much more extensive. In some cases, those
ordinances include campaign contribution limits, reporting and
disclosure requirements that supplement the requirements of
the PRA, temporal restrictions on when campaign funds may be
raised, and voluntary public financing of local campaigns,
among other provisions. In many cases, local campaign finance
ordinances are enforced by the district attorney of the county
or by the city attorney. In at least a few cases, however,
local jurisdictions have set up independent boards or
commissions to enforce the local campaign finance laws.
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The FPPC does not currently enforce any local campaign finance
ordinances as it would for San Bernardino if this bill were
adopted. The FPPC can and does, however, bring enforcement
actions in response to violations of the PRA that occur in
campaigns for local office, even in cases where the local
jurisdiction brings separate enforcement actions for
violations of a local campaign finance ordinance.
3)Criminal, Civil, and Administrative Enforcement of the PRA and
Local Campaign Ordinances : As noted above, violations of the
PRA are subject to administrative, civil, and criminal
penalties. Generally, the Attorney General (AG) and district
attorneys have responsibility for enforcing the criminal
provisions of the PRA, though any elected city attorney of a
charter city also has the authority to act as the criminal
prosecutor for violations of the PRA that occur within the
city. The FPPC, the AG, district attorneys, and elected city
attorneys of charter cities all have responsibility for
enforcement of the civil penalties and remedies provided under
the PRA, depending on the nature and location of the
violation, while any member of the public also has the ability
to file a civil action to enforce the civil provisions of the
PRA, subject to certain restrictions. The FPPC has the sole
authority to bring administrative proceedings for enforcement
of the PRA. When the FPPC determines on the basis of such a
proceeding that a violation of the PRA has occurred, it can
impose monetary penalties of up to $5,000 per violation, in
addition to ordering the violator to cease and desist
violation of the PRA and to file any reports, statements, or
other documents or information required by the PRA.
In the case of local campaign ordinances, there is no single
approach as to the types of penalties that are available for
the violations of those ordinances. Many local ordinances
provide for misdemeanor or civil penalties for violations,
while some ordinances (including the current ordinance for San
Bernardino County) do not establish any penalties for
violations. In some local jurisdictions that have independent
boards or commissions to enforce the local campaign finance
ordinances, those boards or commissions have the authority to
bring administrative enforcement proceedings, similar to the
authority the FPPC has under the PRA.
4)Public Access to the Enforcement Activities : The FPPC's
headquarters are located in Sacramento, approximately 400
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miles from the county seat for San Bernardino County.
Although campaign disclosure reports presumably would continue
to be filed with the San Bernardino County registrar of voters
even if this bill is passed, therefore ensuring that public
access is available locally to such documents, the committee
may wish to consider whether having the FPPC administer and
enforce a campaign finance ordinance for the County will limit
public access by county residents to the enforcement process
for that ordinance. The FPPC typically conducts its meetings
at its headquarters in Sacramento. If this bill is enacted,
and the FPPC assumes responsibility for administering and
enforcing San Bernardino's campaign ordinance, does the FPPC
plan to hold hearings in San Bernardino County when
considering enforcement actions brought under the county's
ordinance? Will the FPPC open an office in San Bernardino
County, either on a full-time or part-time basis? If the
answer to one or both of these questions is "no," the
committee may wish to inquire of the author, the sponsor, and
of the FPPC, of the steps that they plan to take to ensure
that San Bernardino residents have access to the formal
decision making process for administrative enforcement actions
brought under the county's campaign finance ordinance.
5)Could an Expansion of This Bill Harm Enforcement of the PRA ?
One of the provisions of this bill permits any agreement
reached by the FPPC and San Bernardino County to include
agreements pertaining to any necessary reimbursement of state
costs by the county for the costs incurred in enforcing the
county's campaign finance ordinance. Presumably, the FPPC
will not enter into an agreement with San Bernardino County
unless the FPPC is comfortable that it will be reimbursed for
its costs incurred in enforcing the county's ordinance. If
that is the case, the addition of this responsibility to the
FPPC's workload should not negatively impact the FPPC's
ability to effectively enforce the PRA.
However, to the extent that this bill is expanded to allow the
FPPC to enforce ordinances in other jurisdictions, or to the
extent that this bill sets a precedent that results in other
jurisdictions seeking Legislative authority to permit such
arrangements, the committee may wish to consider whether such
an expansion of the FPPC's workload could negatively impact
the ongoing enforcement of the PRA. Because there is no
guarantee that local campaign finance ordinances will be
consistent with the general framework of the PRA, each
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additional local ordinance that the FPPC is asked to enforce
could add complexity to the FPPC's work. While the added
complexity of a single ordinance and a single jurisdiction
likely can be handled by the FPPC without much difficulty, if
this or subsequent bills allowed for the FPPC to enter into
similar arrangements with other jurisdictions, the added
complexity of tracking and enforcing multiple (potentially
inconsistent) ordinances in multiple jurisdictions could harm
the FPPC's ability to focus on its primary responsibility of
enforcing the PRA.
6)Double-Referral and Amendments : This bill is scheduled to be
heard in the Assembly Committee on Local Government on April
25, 2012, and will be heard in this committee on April 26,
2012, only if this bill is first approved by the Local
Government Committee. The action taken by the Local
Government Committee on this bill, if any, was unavailable at
the time this analysis was prepared.
In its committee analysis, the Local Government Committee
suggested various amendments to this bill, which the author of
the bill has agreed to accept. Due to an impending
legislative deadline for the consideration of fiscal bills by
policy committees, however, those amendments cannot be taken
in the Local Government Committee if this bill is to be heard
in this committee prior to the relevant deadline. As a
result, those amendments will need to be taken in this
committee. Those amendments do the following:
a) Prohibit any agreement entered into by San Bernardino
County and the FPPC from including cancellation fees,
liquidated damages, or other such disincentives to
cancellation, while recognizing that the County would still
be obligated to pay for services rendered or other
expenditures reasonably made by the FPPC in anticipation of
services to be rendered.
b) Add a January 1, 2018, sunset date to the bill in order
to allow the parties to negotiate an agreement and
implement it over two election cycles to see how such an
arrangement works.
c) Require the FPPC to report to the Legislature on the
operation of the program, including its performance on
measures of economic efficiency, enforcement, and customer
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satisfaction, not later than January 1, 2017 (one year
prior to the sunset date).
7)Arguments in Support : The sponsor of this bill, the County of
San Bernardino, writes:
The following are reasons why the FPPC would be more
effective and efficient than creating another
government bureaucracy to enforce local campaign
finance rules in the County of San Bernardino:
Cost effective-Counties that have ethics
commissions or other formal entities spend upward of
$3.5 million or more annually to police ethical
behavior. Contracting with the FPPC is a cost
effective alternative to an ethics commission and a
prudent use of taxpayer's resources.
Eliminates conflict of interest-Contracting
with the FPPC represents oversight inclusion of an
impartial and independent third party and eliminates
potential conflict of interest that could arise from
the creation of an internal agency by the Board of
Supervisors.
Proven track record-The FPPC has enforced
California's campaign finance laws at the state and
local level for 37 years, and thus the FPPC has the
track record necessary to provide effective
oversight of the County's campaign finance rules.
Since 1975, the FPPC Enforcement Division has
prosecuted more than 2,400 cases, and the Commission
has imposed more than $20 million in fines based on
Enforcement actions.
1)Political Reform Act of 1974 : California voters passed an
initiative, Proposition 9, in 1974 that created the FPPC and
codified significant restrictions and prohibitions on
candidates, officeholders and lobbyists. That initiative is
commonly known as the PRA. Amendments to the PRA that are not
submitted to the voters, such as those contained in this bill,
must further the purposes of the initiative and require a
two-thirds vote of both houses of the Legislature.
REGISTERED SUPPORT / OPPOSITION :
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Support
County of San Bernardino (sponsor)
California State Association of Counties
Fair Political Practices Commission
Urban Counties Caucus
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094