BILL ANALYSIS �
SB 168
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Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 168 (Corbett) - As Introduced: February 3, 2011
SENATE VOTE : 23-15
SUBJECT : Petitions: compensation for signatures.
SUMMARY : Prohibits a person from paying another person or being
paid based on the number of signatures obtained on an
initiative, referendum, or recall petition. Specifically, this
bill :
1)Makes it unlawful for a person to pay or to receive money or
any other thing of value based on the number of signatures
obtained on a state or local initiative, referendum, or recall
petition.
2)Provides that a violation of this bill is a misdemeanor
subject to the following penalties:
a) For a person or organization who pays a person based on
the number of signatures obtained on a state or local
initiative, referendum, or recall petition, a fine not to
exceed $25,000, imprisonment in a county jail not to exceed
one year, or both the fine and imprisonment.
b) For a person who is paid based on the number of
signatures obtained on a state or local initiative,
referendum, or recall petition, a fine not to exceed
$1,000, imprisonment in a county jail not to exceed six
months, or both the fine and imprisonment.
3)Provides that nothing in this bill prohibits the payment for
signature gathering that is not based, either directly or
indirectly, on the number of signatures obtained on a state or
local initiative, referendum, or recall petition.
EXISTING LAW permits any person who is a voter or who is
qualified to register to vote in this state to circulate an
initiative or referendum petition.
FISCAL EFFECT : According to the Senate Appropriations
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Committee, pursuant to Senate Rule 28.8, negligible state costs.
State-mandated local program; contains a crimes and infractions
disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author, "Some signature
gathering firms compensate circulators based on the number of
signatures they collect. Some circulators reach the deadline
to qualify initiatives by illegally misinforming voters and
forging names. Others have forged signatures onto their
petitions by copying names they chose from a phonebook.
Lastly, some have inserted carbon paper and a second petition
behind the original one in order to collect signatures."
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 right of free speech. Writing
for a unanimous court, Justice Stevens noted that "�t]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. The
Meyer court, however, did not address the issue of whether a
state may regulate the manner in which circulators are paid.
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
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 �election process] identification requirement�s].'"
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3)Other Federal Court Jurisprudence : Although the United States
Supreme Court has not ruled on the constitutionality of
prohibiting payment for signature collection on a
per-signature basis, a number of federal courts have
considered challenges to such laws, with the courts reaching
different conclusions about the constitutionality of
per-signature payment bans.
In February 2001, the Eighth Circuit Court of Appeals ruled that
a North Dakota law prohibiting payment for signature
collection on a per-signature basis was consistent with the
United States Constitution and with the Supreme Court's
rulings in Buckley and Meyer . In reaching this decision, the
court noted that the state "produced sufficient evidence that
the regulation is necessary to insure the integrity of the
initiative process," and also noted that no evidence was
presented "that payment by the hour, rather than on
commission, would in any way burden �the] ability to collect
signatures." Initiative & Referendum Institute v. Jaeger
(2001), 241 F.3d 614.
In February 2006, the Ninth Circuit Court of Appeals ruled that
an Oregon law that prohibited payment to electoral petition
signature gatherers on a piece-work or per-signature basis did
not impose a severe burden under the First Amendment, and
therefore did not unconstitutionally burden core political
speech. The court found that Oregon had an "important
regulatory interest in preventing fraud and its appearances in
its electoral processes," and that prohibiting the payment of
signature gatherers on a per-signature basis was reasonably
related to that interest. Prete v. Bradbury (2006), 438 F.3d
949.
In October 2006, the Second Circuit Court of Appeals upheld a
New York law that prohibited payment of any compensation to
individuals hired to circulate electoral petitions if that
compensation is contingent on the number of signatures
obtained. Because New York does not have the initiative
process, the law applies only to nomination petitions for
candidates and to petitions to qualify a new political party.
In its decision upholding the law, the Court referenced the
decisions in the Eighth and Ninth Circuits, and noted that
"�l]ike our sister circuits, we find the record presented to
us provides insufficient support for a claim that the ban on
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per-signature payment is akin to the complete prohibition on
paying petitions circulators that was deemed unconstitutional
in Meyer , or that the alternative methods of payment it leaves
available are insufficient." Person v. New York State Board
of Elections (2006), 467 F.3d 141.
On the other hand, the Sixth Circuit Court of Appeals struck
down an Ohio law that made it a felony to pay anyone for
gathering signatures on election-related petitions on any
basis other than time worked. In its decision, the Court
noted that while Ohio's interest in eliminating election fraud
is a compelling state interest, "there is no evidence in the
record that most, many, or even more than a de minimis number
of circulators who were paid by signature engaged in fraud in
the past." The court further noted that "�t]here is little
dispute that operating under a per-time-only system will
increase the costs of both proposing an initiative and
qualifying it for the ballot," and cited evidence presented
that professional coordinators and circulators were less
interested in working under a per-time-only system. At the
same time, however, the Court discussed the rulings in the
Second, Eighth, and Ninth Circuits, noting that unlike the
laws that were upheld in North Dakota, Oregon, and New York,
the Ohio law was more restrictive and had harsher criminal
sanctions for violations. Specifically, the court noted that
the laws in North Dakota, Oregon, and New York banned payments
made on a per-signature basis, while Ohio banned all payment
to circulators except on a per-time basis. The court noted
that unlike the laws considered by appellate courts in other
circuits, the Ohio law would prohibit bonuses to circulators
based on productivity or longevity, would prohibit a person
employing circulators from setting a minimum signature
requirement, and could even prohibit a person employing
circulators from terminating a circulator who consistently did
not collect enough signatures. Additionally, the court noted
that a violation of the Ohio law was a felony, compared to
misdemeanor penalties for violations in North Dakota, Oregon,
and New York. Although the court recognized these
distinctions between the Ohio law and the laws upheld by three
other appellate circuits, the court refused to discuss whether
it would uphold an Ohio law that was similar to Oregon's,
North Dakota's, or New York's. Citizens for Tax Reform et al.
v. Deters et al. (2008), 518 F.3d 375.
A number of federal district courts have struck down bans on
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per-signature payments in other states, however. In 1994, a
federal district court struck down a Washington law that made
it illegal to pay gatherers of signatures on initiative and
referendum petitions on a per-signature basis, noting in its
decision that the state had failed to provide any "proof of
fraud stemming from the payment per signature method of
collection." Limit v. Maleng (1994), 874 F.Supp. 1138. In
1997, a district court struck down a similar Mississippi law,
citing evidence presented that the "payment of a flat daily
rate to Mississippi circulators had yielded poor results," and
concluding that the state had failed to prove "actual fraud or
threat to citizens' confidence in government posed
by?circulators who were paid per signature." Term Limits
Leadership Council, Inc. v. Clark (1997), 984 F.Supp. 470.
Federal district courts also struck down similar laws in Maine
( On Our Terms '97 PAC v. Secretary of State of State of Maine
(1999), Civil No. 98-104-B-DMC) and in Idaho ( Idaho Coalition
United for Bears v. Cenarrusa (2001), 234 F.Supp.2d 1159).
More recently, a Colorado court issued a preliminary
injunction against a Colorado law prohibiting payments made on
a per-signature basis ( Independence Institute v. Buescher
(2010), Civil No. 10-cv-00609-PAB-MEH), pending a full trial
on the law.
In light of the differing opinions reached by various federal
courts on the constitutionality of laws that prohibit payments
on a per-signature basis for signature gathering on petitions,
it is unclear whether a court challenge to this bill, if
enacted, would be successful.
4)Petition Fraud : According to the Secretary of State's
Election Fraud Investigation Unit (EFIU), between 1994 and
2010, the EFIU opened 240 cases for falsifying petitions, of
which 46 were sent to district attorneys for prosecution,
resulting in 33 convictions. Since the EFIU was created in
1994, a larger number of convictions have been obtained for
falsified petitions than for any other election crime except
fraudulent voter registration.
5)Labor Law Implications : This bill prohibits the payment of
individuals on a per-signature basis for collecting signatures
on petitions. Typically, in California, those individuals who
are paid to circulate petitions or register voters on a
per-signature or per-piece basis are independent contractors.
However, to the extent that this bill forces individuals who
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are paid to circulate petitions or register voters to be paid
an hourly wage, this bill could also result in these
individuals being considered employees under California law.
As such, the individual, corporation, or group paying
individuals to circulate petitions may be required to pay
minimum wage, provide workers compensation insurance and
unemployment insurance for its employees, and maintain a
payroll system.
6)Increased Costs : As noted above in comment #5, those
individuals or groups paying signature collectors may be
required to provide certain benefits such as unemployment
insurance and workers compensation insurance. This may result
in higher costs to those groups that pay individuals to
circulate petitions. In addition, prohibiting payment of
individuals on a per-signature basis could increase costs
because it may become more difficult to measure the work
product of petition circulators. Potential increased costs
may be partially offset if, by reducing the incentive to
submit fraudulently-obtained signatures, this legislation
results in paid circulators submitting fewer such signatures.
7)Arguments in Support : In support of this bill, the California
Labor Federation writes:
Currently, signature gatherers typically earn a fixed
dollar amount per signature. This amount can range
from $1 to $10 depending on the employing firm, the
length of time until the filing deadline and the
experience of the signature gatherer. Unfortunately,
as history has made all too clear, the practice of
compensating these workers per signature gathered has
birthed, at best, inaccuracy and, at worst, outright
fraud. The goal becomes simply names on a petition,
not insight on an issue. Clearly, steps must be taken
to clean up the process.
SB 168 in no way limits the ability of Californians to
act when their legislators will not. An issue that
truly engages voters can still be the subject of a
citizen-sponsored ballot initiative, and those who
gather signatures can still be fairly compensated for
their work. SB 168 simply prohibits signature
gathering firms from paying workers per signature,
thereby reducing the financial benefits of voter
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fraud, weeding out the bad actors while preserving our
treasured tradition of citizen activism.
Also in support of the bill, the City of Murrieta writes:
During past election cycles, the City of Murrieta was
the focus of initiative petitions. While the
initiatives were originally the result of
community-based activism, they quickly descended into
campaigns that did not benefit the community. Most
egregious, paid signature gatherers were hired that
misled many residents into signing petitions they
otherwise would not have endorsed. While the City
fully supports community-driven initiatives, we do not
support campaigns that are based on misleading
information.
Our City applauds?efforts to distinguish between
active participants that gather signatures in support
or opposition to an initiative and those who hire paid
political operatives that employ every tactic to get
an unknowing citizen to sign a petition.
8)Arguments in Opposition : In opposition to this bill, the
Humane Society of the United States (HSUS) writes:
Our primary concern is that if SB 168 is enacted it
will significantly increase the cost of petitioning to
place an initiative on the ballot, foreclosing our
ability to bring important animal protection reforms
before California voters. The HSUS has used
California's ballot initiative process many times to
protect wildlife and animals raised for food. Had SB
168 been in place during 2008, Californians may never
have gotten the chance to vote in favor of Proposition
2, the single most important piece of legislation
protecting farm animals in U.S. history. Even with
nearly 4,000 volunteers collecting half a million
signatures, we still had to contract with paid
petition circulators to gather the necessary
signatures to put Prop 2 before voters. It's
challenging for any grassroots group to reach the
necessary threshold - and efforts to make it more
expensive can thwart efforts like ours.
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Unfortunately, while SB 168's provisions would likely
have little effect on established, wealthy political
or corporate interests, who could afford to spend the
additional money required. But it would have a
devastating impact on less well-heeled, non-profit,
grassroots groups. Outlawing pay-per-signature
payment methods has been estimated to increase the
cost of obtaining signatures for petitions from
between 20 and 200 percent?
The HSUS shares the desire to prevent fraud in the
initiative petition process. Our experience is that
the interests of all campaigns is to establish private
contracting mechanisms that minimize fraud - after
all, invalid or fraudulent signatures do not advance
anyone's campaign effort. It's unclear to us how SB
168 will deter any fraud. When enjoining enforcement
of a similar, though less stringent law in Colorado, a
federal judge concluded "pay per-signature
compensation is no more likely than pay-per-hour
compensation to induce fraudulent signature gathering
or increase invalidity rates."
Also in opposition to this bill, the California Chamber of
Commerce, on behalf of itself and several other organizations,
writes:
It appears that the goal of SB 168 is to prevent?fraud
and ensure that voters get better information when
petitioners approach them. While this is a worthy
goal, SB 168 would have the unintended consequence of
limiting the public's role in the ballot process. By
outlawing payment for signature collection on a per
signature basis, SB 168 would make it prohibitively
expensive to do an initiative or a recall and next to
impossible to do a referendum.
Furthermore, it is unclear how limiting the payment
type for signatures will ensure that the public will
receive better information when petitioners approach
them. Indeed, SB 168 is likely to limit how far and
wide these important election materials are
disseminated - and even exclude certain areas - as
petitioners attempt to reach as many California voters
as possible.
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9)Previous Legislation : This bill is identical to SB 34
(Corbett) of 2009, which was vetoed. In his veto message,
Governor Schwarzenegger wrote:
The California Constitution provides an important
system of checks and balance by giving the people
direct control over their government through
initiative, referendum and recall. This bill would
limit the initiative process by prohibiting a person
from paying or receiving money or anything of value
based on the number of signatures obtained on such
petitions.
As I have stated when vetoing similar legislation,
prohibitions on per-signature payments will make it
more difficult for grassroots organizations to gather
the necessary signatures and qualify measures for the
ballot.
AB 2946 (Leno) of 2006, contained provisions similar to this
bill to prohibit payment on per-signature basis for
individuals circulating petitions. AB 2946 was vetoed.
10)Related Legislation : SB 205 (Correa), which is pending in
this committee, would prohibit any person, company, or other
organization from agreeing to pay money or other valuable
consideration on a per-affidavit basis to any person who
assists another person to register to vote by receiving the
completed affidavit of registration and would prohibit the
receipt of this per-affidavit consideration.
REGISTERED SUPPORT / OPPOSITION :
Support
Ballot Initiative Strategy Center
California Labor Federation
California Professional Firefighters
City of Murrieta
Contra Costa County
Secretary of State Debra Bowen
One individual
Opposition
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California Against Slavery
California Chamber of Commerce. In its letter of opposition,
the California Chamber of Commerce indicated that the following
groups are also opposed to this bill:
American Council of Engineering Companies in California
Associated General Contractors of California
Association of California Life and Health Insurance
Companies
California Apartment Association
California Building Industry Association
California Business Properties Association
California Business Roundtable
California Manufacturers and Technology Association
California New Car Dealers Association
California Retailers Association
California Taxpayers Association
Culver City Chamber of Commerce
Greater Corona Valley Chamber of Commerce
Greater Riverside Chambers of Commerce
Lake Elsinore Valley Chamber of Commerce
Long Beach Area Chamber of Commerce
Murrieta Chamber of Commerce
Oxnard Chamber of Commerce
Palm Desert Chamber of Commerce
Pharmaceutical Research and Manufacturers of America
Redondo Beach Chamber of Commerce
San Diego Regional Chamber of Commerce
Santa Clara Chamber of Commerce and Convention-Visitors
Bureau
Simi Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
Southwest California Legislative Council
Temecula Valley Chamber of Commerce
Western Growers Association
Wildomar Chamber of Commerce
Citizens in Charge
Howard Jarvis Taxpayers Association
Humane Society of the United States
Wine Institute
One individual
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094
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