BILL ANALYSIS Ó
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Lou Correa, Chair
BILL NO: AB 2410 HEARING DATE: 6/19/12
AUTHOR: FUENTES ANALYSIS BY: Frances Tibon
Estoista
AMENDED: 5/8/12
FISCAL: NO
SUBJECT
Elective office: felony conviction
DESCRIPTION
Existing law and the California Constitution provides that
a person who is convicted of any of the following crimes is
disqualified from holding public office in this state:
a. Giving or offering a bribe to procure personal
election or appointment.
b. Bribery, perjury, forgery, malfeasance in office, or
other high crimes.
c. As a public officer, for gratuity or reward,
appointing another person to public office, or
permitting another person to exercise or discharge the
duties of his or her office.
d. While a member of the Legislature, refusing to appear
before the Senate, Assembly, or any committee of the
Legislature after being summoned to testify, or while
appearing before the Senate, Assembly, or any
committee, refusing to be sworn or to answer any
material and proper question, or refusing to produce,
upon reasonable notice, any material and proper books,
papers, or documents in his or her possession and under
his or her control.
e. While an executive or ministerial officer, employee,
or appointee of the state, a county, a city, or another
political subdivision of the state, asking for,
receiving, or agreeing to receive any bribe to
influence any decision made by that person in his or
her official capacity.
f. While a member of the Legislature or of a legislative
body of a city, county, city and county, school
district, or other special district, committing any of
various crimes against the legislative power, including
bribery and logrolling.
g. While an officer, committing any of various bribery
and corruption crimes against the public justice,
including bribing or threatening judges or jurors.
h. Giving or offering a bribe to a member of a city
council or a board of supervisors to influence any
decision made by that member in his or her official
capacity.
i. While a public official, aiding the illegal casting
of a vote at an election or otherwise facilitating the
perpetration of election fraud.
j. While a public official, being financially interested
in a contract made in his or her official capacity, or
by any body or board of which he or she is a member.
aa. Giving or offering a bribe to any executive
officer in the state to influence any decision made by
that officer in his or her official capacity.
bb. While an officer of the state or of any
county, city, town, or district of the state, or while
otherwise charged with the receipt, safekeeping,
transfer, or disbursement of public moneys,
appropriating such moneys for personal use, or refusing
to pay any public moneys as required by law.
cc. Interfering with the work of prisoners
employed at a road camp, or giving or attempting to
give such prisoners any controlled substances,
intoxicating liquors, firearms, weapons, or explosives
of any kind.
dd. Interrupting the work of prisoners employed
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at a public park or camp, or giving or attempting to
give such prisoners any controlled substances,
intoxicating liquors, firearms, weapons, or explosives
of any kind.
This bill provides a person is not considered a candidate
for, and not eligible to be elected to, any elective office
in the state if the election occurs within 20 years of the
date upon which the person completes a sentence, including
probation, for conviction of a felony that involved
accepting or giving, or offering to give, any bribe, the
embezzlement of public money, extortion or theft of public
money, perjury, or conspiracy to commit any of those
crimes.
This bill provides, that "conviction of a felony" includes
a conviction of a felony in this state and a conviction
under the laws of any other state, the United States, or
any foreign government or country of a crime that, if
committed in this state, would be a felony, and for which a
person has not received a pardon from the Governor of this
state, the governor or other officer authorized to grant
pardons in another state, the President of the United
States, or the officer of the foreign government or country
authorized to grant pardons in that foreign jurisdiction.
BACKGROUND
In setting qualifications for federal office, the United
States (U.S.) Constitution does not prohibit felons from
holding elected federal office. Additionally, the U.S.
Constitution provides that "Ýe]ach house may determine the
rules of its proceedings, punish its members for disorderly
behavior, and, with the concurrence of two-thirds, expel a
member." According to a 2012 Congressional Research
Report, congressional practice provides that Members of
Congress may be removed from office before the expiration
of their constitutional terms by an "expulsion" from the
Senate (if a Senator) or from the House of Representatives
(if a Representative) upon formal vote on a resolution
agreed to by two-thirds of the membership of each body.
While there are no specific grounds for an expulsion
expressed in the U.S. Constitution, an expulsion is
characterized as a self-disciplinary action necessary to
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protect the integrity of the institution and its
proceedings. For example, expulsion actions in both the
House and the Senate generally concern cases of perceived
disloyalty to the U.S. government, or the conviction of a
criminal statutory offense which involved the abuse of
one's official position. According to the report, although
expulsion is rare, there have been approximately five House
Members expelled, one occurring in the last decade. It
should be noted that many Members of Congress have chosen
to resign from office rather than face expulsion.
Furthermore, the report argues that "the apparent reticence
of the Senate or the House to expel a Member for past
misconduct after the Member has been duly elected or
re-elected by the electorate, with the knowledge of the
Member's conduct, appears to reflect in some part the
deference traditionally paid in our heritage to the popular
will and election choice of the people. In 1914, the
Judiciary Committee of the House detailed various policy
considerations in expulsions for past misconduct:
"In the judgment of your committee, the power of the House
to expel or punish by censure a Member for misconduct
occurring before his election or in a preceding or former
Congress is sustained by the practice of the House,
sanctioned by reason and sound policy and in extreme cases
is absolutely essential to enable the House to exclude
from its deliberations and councils notoriously corrupt
men, who have unexpectedly and suddenly dishonored
themselves...."
Additionally, according to a U.S. Department of Justice
report entitled, "Civil Disabilities of Convicted Felons,"
there are various federal statutes which provide that a
conviction may result in loss of or ineligibility for
office. For example, federal statute provides that a
person convicted of treason is prohibited from holding any
office in the U.S.
COMMENTS
1. According to the author : AB 2410 (Fuentes) would ban
ex-felons who were convicted of a felony that violates
the public trust from running for public office for 20
years. The intent of this bill is to create
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accountability and ensure that we are setting a high
ethical standard for those seeking to represent
Californians by running for public office. Malfeasance,
deception and misconduct exist in all levels of
government and this legislation will send a strong
message to those seeking to use public office for
personal gain.
2. Exclusive Authority . Pursuant to the U.S.
Constitution, States are prohibited from adopting
qualifications for federal candidates, and the
California Constitution clearly grants exclusive
authority to each house of the Legislature to judge the
qualifications and elections of its members. A question
is therefore presented as to whether this prohibition
could constitutionally apply to a candidate for a seat
in either house of the Legislature. It is also worth
noting that should this bill be enacted, it could very
possibly violate the First and Fourteenth Amendments of
the U.S. Constitution by restricting the fundamental
right to run for and hold public office as well as
interfering with the right of the voters to elect
candidates of their choice to public office. (See
People v. Ballard (1980) 104 Cal.App.3d 757; also see
Bullock v. Carter (1972) 405 U.S. 134 and Thompson v.
Mellon (1973) 9 Cal.3d 96).
3. Suggested amendment : This bill provides that: "A
person shall not be considered a candidate for any
elective office in this state?" as such it is not clear
as to what offices would be covered. In order to avoid
the potential for conflict in this bills application,
would the author be amenable to accept clarifying
language specifying the provisions of this bill would
not apply to Federal candidates?
4. Is There a Problem ? As noted earlier in this analysis,
the California Constitution directs that "laws shall be
made to exclude persons convicted of bribery, perjury,
forgery, malfeasance in office, or other high crimes
from office or serving on juries" and although this
section is mandatory, it is not self-executing and
requires legislation to give it effect. To effectuate
the constitutional prohibitions, various state laws were
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enacted. For instance, various Penal and Government
Code sections listed above enumerate events and actions
which cause certain crimes to result in an elected
official being disqualified from holding public office
in the state. While the author has provided anecdotal
evidence to suggest current law is insufficient in its
ability to deter such behavior from California's elected
officials, no empirical or statistical evidence was
presented to the committee. Moreover, the committee is
unaware of any information that demonstrates convicted
felons are being elected to office in California. The
lack of evidence may demonstrate that California voters
are not electing convicted felons as their
representatives and consequently question the need for
this bill.
Committee staff points out that while this bill provides
that a person is ineligible to run for, or hold office
within 20 years of getting out of prison, or off
probation after conviction of specified felonies while
in office, this appears to be in conflict with the
California Constitution which prohibits a person from
ever holding office after conviction of bribery,
embezzlement of public money, and other crimes also
found in AB 2410.
5. Similar Legislation : AB 309 (Cook), Chapter 543,
Statutes of 2011 requires an appointed or ex officio
office to become vacant when the incumbent is debarred,
suspended, disqualified, or otherwise excluded from
participating in a covered transaction, pursuant to
federal law.
AB 2672 (Cook) of 2010, was substantially similar to AB
309 and would have required an appointed individual who
had been debarred, suspended, disqualified, or otherwise
excluded from participating in federal "covered
transactions" pursuant to federal law to vacate that
office. AB 2672 was vetoed by Governor Schwarzenegger.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 7-0
Assembly Floor: 70-0
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POSITIONS
Sponsor: Author
Support: Los Angeles County District Attorney
Oppose: None received
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