BILL ANALYSIS Ó
AB 834
Page 1
Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Sebastian Ridley-Thomas, Chair
AB 834
(Salas) - As Amended March 26, 2015
SUBJECT: Political Reform Act of 1974: advertisements.
SUMMARY: Prohibits public agencies from paying for
advertisements that feature candidates for office in the last 90
days before an election. Specifically, this bill:
1)Prohibits a person or entity from disseminating, broadcasting,
or otherwise publishing a public advertisement featuring a
candidate for elective office within 90 days before the date
of the election at which the candidate will appear on the
ballot.
2)Defines "public advertisement," for the purposes of this bill,
as an advertisement, including a broadcast, billboard, or
newspaper advertisement, that is paid for from the funds of a
state or local public agency.
3)Defines "featuring a candidate," for the purposes of this
bill, as containing the voice or image of, or a statement
attributable to, a candidate.
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EXISTING LAW:
1)Creates the Fair Political Practices Commission (FPPC), and
makes it responsible for the impartial, effective
administration and implementation of the Political Reform Act
(PRA).
2)Prohibits a public officer from expending, and prohibits a
candidate from accepting, any public moneys for the purpose of
seeking elective office.
3)Makes it unlawful for an elected state or local officer,
appointee, employee, or consultant to use, or permit others to
use, public resources for a campaign activity.
4)Provides that any officer of the state, or of any county,
city, town or district of the state, and every other person
charged with the receipt, safekeeping, transfer, or
disbursement of public moneys who uses such funds for personal
use is guilty of a felony, punishable by imprisonment in the
state prison for two, three, or four years, and is
disqualified from holding any office in the state.
5)Prohibits a newsletter or other mass mailing from being sent
at public expense. Defines "mass mailing," for these
purposes, as over two hundred substantially similar pieces of
mail, not including a form letter or other mail which is sent
in response to an unsolicited request, letter or other
inquiry.
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FISCAL EFFECT: Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS:
1)Purpose of the Bill: According to the author:
In California, a government entity can pay for
advertisements such as billboards, public service
announcements, and commercials that feature a
candidate for elective office. While this activity is
not considered to be a contribution by the Fair
Political Practices Commission (FPPC), the public
funds that are used support candidates for public
office during elections.
A central purpose of the Political Reform Act, which
established the FPPC, is to provide the voters and
public with meaningful disclosure of state and local
campaign contributions and expenditures, state
lobbying activity, and the economic interests of state
and local candidates and designated public officials.
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The California State Senate Rules Committee, which
publishes mass mailings for all state Senators, has
established a 90-day mass-mailing prohibition to those
Senators whose names appear on any ballot. This
policy is designed to prevent content that has the
effect of enhancing the public image of Senators
during an election.
At least nine states prohibit the use of public funds
for public service announcements and other
communications that feature candidates for public
office, including elected officials running for
re-election or election to a different office.
Assembly Bill 834 would establish a black out period,
aligning with the California Senate mailing
prohibition, which prohibits the use of advertisements
that feature a candidate and is paid for by state or
local entities, in the final 90 days of an election in
which the candidate will appear on the ballot.
2)Existing Prohibitions Against the Use of Public Funds for
Campaign Purposes: As detailed above, California law already
contains a number of provisions that prohibit public funds
from being used for campaign purposes. The types of payments
that are prohibited by those laws vary, however, as do the
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standards that apply for determining whether a particular
payment violates the law.
Nonetheless, these prohibitions typically apply only to payments
that constitute "express advocacy" for or against a candidate
or ballot measure, or that otherwise refer to an elective
office or campaign or solicit contributions. In situations
where public funds are used for an otherwise permissible
public purpose, however, state law does not prohibit such
payments simply because the payment may have the effect of
benefitting a candidate for elective office. For example, a
cable television program produced by a city and hosted by the
mayor of that city would not necessarily violate any of the
existing prohibitions against the use of public funds for
campaign purposes if the program was not used to expressly
advocate the election of any candidate, even though the
program may benefit the mayor's reelection campaign by raising
the profile of the mayor.
3)San Joaquin Valley Air Pollution Control District: As
background information in support of the need for this bill,
the author provided correspondence between the San Joaquin
Valley Air Pollution Control District (District) and the FPPC
from 2010 in which the District sought guidance on whether any
provision of the PRA would limit the ability of the District
to produce and conduct public education and outreach campaigns
through public service announcements (PSAs) that featured
members of the District's board. In its letter to the FPPC,
the district indicated that some of the District's elected
board members could be involved in a reelection campaign at
the time the PSAs were broadcast or displayed.
In its response to the district, the FPPC concluded that since
the PSAs would not contain express advocacy, would not refer
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to elective office, and would not solicit contributions, the
payments made to create the PSAs would not be a contribution
to the District's board members. Additionally, the FPPC
concluded that the PSAs would not be considered "behested
payments" under the PRA, and thus that those payments would
not need to be reported by the board members appearing in the
PSAs. The FPPC's response did not opine on whether the
expenditure of public funds for the PSAs would violate any
legal restriction on the use of public funds for campaign
purposes that is not contained in the PRA.
4)Limiting Communications Between Governmental Agencies and the
Public: Notwithstanding the author's concern that existing law
may permit the payment of public funds for advertisements that
can indirectly benefit public officials' campaigns, any
limitation on the type or timing of communications between
governmental agencies and the public has the potential to
limit the ability of agencies to serve the public. For
instance, many local agencies regularly produce public affairs
programs that air on local cable stations to provide the
public with information about the agencies' activities and
services, and the policies that they are considering. If
these programs are considered broadcast advertisements under
the provisions of this bill, they could be restricted
considerably, which could limit the public's access to
information about the activities of governmental agencies.
Additionally, notwithstanding the author's concern that PSAs
could be used to benefit the image of public officials who are
running for reelection, it may also be the case that the
involvement of public officials in PSAs can make certain
messages more effective. A PSA dealing with drunk driving,
for example, may be more effective if it features the county
sheriff. Similarly, during a state of emergency, public
officials can be effective as trusted messengers to help
communicate essential information to the public.
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As detailed above, state law already contains numerous
protections against the use of public funds for campaign
purposes. In determining whether further restrictions on the
use of public funds are warranted when those funds are used
for advertisements featuring public officials, the committee
may wish to balance any potential for abuse against the
potential that such restrictions may limit the effectiveness
of governmental communications with the public.
5)Technical and Logistical Issues: As currently drafted, this
bill prohibits advertisements from being distributed if those
advertisements were produced using public funds, even if
public funds are not being used to pay for the broadcast or
dissemination of the advertisement.
For example, a city might choose to use public funds to produce
a PSA in which the mayor of the city encourages water
conservation in light of the state's ongoing drought. The
city might further decide not to use public funds to broadcast
that PSA, but instead to make it available to local television
stations that are willing to broadcast the PSA for free.
However, if a television station chose to air that PSA in the
last 90 days before an election at which that mayor was
appearing on the ballot as a candidate, that station would
have violated the provisions of this bill.
Additionally, because the conduct prohibited by this bill is the
dissemination of certain advertisements, and not the use of
public funds to produce or disseminate those advertisements,
individuals and entities could face liability under this bill
even if they were not involved in the decision to use public
funds for the advertisement. For instance, under a strict
reading of this bill, a newspaper could be found to violate
this bill if it ran an advertisement that was produced by a
governmental entity, even where the governmental entity paid
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for that advertisement to appear in the newspaper.
Because the author's intent with this bill seems to be
preventing governmental agencies from using public funds to
promote agency officials in the days leading up to an
election, it may be appropriate to amend this bill to better
reflect the author's intent and to avoid the technical and
logistical issues outlined above. In light of that fact, if it
is the committee's desire to approve this bill, the author and
the committee may wish to consider amendments that would
replace the text of this bill with the following language:
SECTION 1. Section 89002 is added to the Government Code, to
read:
89002. No state or local governmental agency shall make a
payment or otherwise use agency resources for the purpose of
publicly disseminating a communication by television, radio,
billboard, or newspaper that clearly identifies a candidate
for elective office within 90 days before the date of an
election, or on the date of the election, at which the
candidate will appear on the ballot. The commission shall
promulgate regulations that permit exceptions to this
prohibition when necessary to the efficient operation of the
agency or responsive to an emergency or other critical issue
within the agency's jurisdiction.
6)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.
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REGISTERED SUPPORT / OPPOSITION:
Support
None on file.
Opposition
None on file.
Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094