BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2523


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          Date of Hearing:  April 13, 2016 


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                                Shirley Weber, Chair


          AB 2523  
          (Mullin) - As Amended April 6, 2016


          SUBJECT:  Local elective offices:  contribution limitations.


          SUMMARY:  Establishes campaign contribution limits for local  
          office at the same level as the limit on contributions from  
          individuals to candidates for Senate and Assembly, except where  
          a local jurisdiction establishes its own limits.  Specifically,  
          this bill:  


          1)Prohibits a person from making to a candidate for local  
            elective office, and prohibits a candidate for local elective  
            office from accepting from a person, a contribution totaling  
            more than the limit on contributions to candidates for state  
            Senate and Assembly from persons other than small contributor  
            committees and political party committees, as adjusted by the  
            Fair Political Practices Commission (FPPC), as specified.  The  
            current limit under this provision is $4,200 per contributor  
            per election.



             a)   Provides that a contribution is not deemed to be  
               received for the purposes of this limit if it is returned  









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               to the contributor within 14 days of receipt.

             b)   Provides that this limit does not apply to a candidate's  
               contributions of his or her personal funds to his or her  
               own campaign.



          2)Permits a local government, by ordinance or resolution, to  
            impose a limitation on contributions to candidates for local  
            elective office which shall take precedence over the limits  
            otherwise imposed by this bill, and allows the local  
            government to adopt enforcement standards for a violation of  
            that limit.  Permits the limitation to be imposed by a local  
            initiative measure.  Provides that nothing in this bill  
            prevents a local government from adopting its own penalties  
            and its own enforcement mechanism for a violation of a local  
            contribution limit that is established pursuant to this  
            provision.


          3)Provides that a violation of the contribution limits  
            established by this bill is punishable by a civil fine of up  
            to $5,000 or three times the amount that was contributed or  
            accepted in excess of the contribution limit, whichever is  
            greater.  Provides that a knowing and willful violation of the  
            contribution limits is a misdemeanor.  Makes the district  
            attorney of the county in which the violation occurs  
            responsible for enforcing these civil and criminal penalties.


          4)Provides that whether a violation of the contribution limits  
            imposed by this bill is inadvertent, negligent, or deliberate,  
            and the presence or absence of good faith, shall be considered  
            in applying the penalties detailed above.











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          5)Requires a civil action or criminal prosecution for a  
            violation of the contribution limits established by this bill  
            to be commenced within four years after the date on which the  
            violation occurred.


          6)Defines various terms for the purposes of this bill such that  
            those terms generally have the same or similar meanings as  
            those terms are defined in the Political Reform Act (PRA).


          7)Requires this bill to be liberally construed to accomplish its  
            purposes.


          8)Contains a severability clause.


          9)Makes various findings and declarations.


          10)Makes corresponding changes.


          EXISTING LAW:  


          1)Permits a county, city, special district, or school district  
            to limit campaign contributions in local elections.


          2)Creates the FPPC, and makes it responsible for the impartial,  
            effective administration and implementation of the PRA.



          3)Requires any local government agency that has enacted, enacts,  









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            amends, or repeals an ordinance or other provision of law  
            affecting campaign contributions and expenditures to file a  
            copy of the action with the FPPC.



          4)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.



          5)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."



          6)Prohibits a person, other than a small contributor committee  
            or political party committee, from making any contribution  
            totaling more than $4,200 to any candidate for elective state  
            office other than statewide elective office, and prohibits  
            candidates from accepting a contribution that exceeds that  
            amount.  Requires the FPPC to adjust this limit in January of  









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            every odd-numbered year to reflect any increase or decrease in  
            the Consumer Price Index, and requires those adjustments to be  
            rounded to the nearest $100.


          


          FISCAL EFFECT:  Unknown.  State-mandated local program; contains  
          a crimes and infractions disclaimer.



          COMMENTS:  


          1)Purpose of the Bill:  According to the author:


               Currently, there is no state standard of limits on  
               campaign contributions for candidates running for  
               local office. This means that those local  
               jurisdictions that have not adopted limits  
               independently currently have no limit on the amount of  
               money local candidates can accept. This opens the  
               potential for the corrupting influence of money.  
               Ensuring the integrity of our elections process should  
               be a priority, and more money should not equal more  
               representation, even at the lowest level of elected  
               office. Local elected officials often have the most  
               direct influence on the governance, and California  
               needs a standard in place to ensure that local  
               candidates are not overly reliant upon a select few  
               wealthy donors. 












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               AB 2523 establishes a standard $4,200 limit on  
               campaign contributions to candidates running for local  
               elected office in jurisdictions that have not adopted  
               their own contribution limits.  By establishing a  
               reasonable cap to prevent excessive contributions in  
               jurisdictions that have no limits and simultaneously  
               maintaining and encouraging local jurisdictions'  
               ability to enact their own contribution limits  
               tailored to the needs of their communities, this  
               measure safeguards our democracy down to the local  
               level. Thirty-four other states have enacted a  
               statewide limit for local campaign contributions.  
               California should be among them.



          2)History of Contribution Limits:  In 1988, voters approved  
            Proposition 73, a campaign finance initiative that prohibited  
            public funding of campaigns and established contribution  
            limits for state and local elections, among other provisions.   
            Under Proposition 73, contributions from a person to a  
            candidate for state or local office were limited to $1,000 per  
            fiscal year, while political parties and certain political  
            committees could give higher amounts.



            Many of the provisions of Proposition 73, including the  
            campaign contribution limits, were ultimately ruled  
            unconstitutional by the federal courts.  Because Proposition  
            73 limited the amount that a contributor could give in each  
            fiscal year, rather than limiting the amount that a  
            contributor could give in each election, the courts found that  
            the contribution limits discriminated in favor of incumbents,  
            since incumbents were much more likely than challengers to  









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            fundraise in non-election years.





            The federal case ended in 1993 when the United States Supreme  
            Court denied certiorari in Service Employees International  
            Union v. FPPC.  The only provisions of Proposition 73 to  
            survive legal challenge were contribution limits for special  
            elections (those limits were on a per-election basis, rather  
            than a per-year basis), limits on gifts and honoraria to state  
            and local elected officials, restrictions on certain mass  
            mailings by officeholders, and a prohibition on the use of  
            public money for campaign purposes.  State and local elections  
            were conducted under the Proposition 73 contribution limits  
            for most of the 1990 election cycle, though the limits were  
            struck down for the last six weeks before the 1990 general  
            election. 



            In 1996, California voters approved Proposition 208, which  
            proposed significant changes to the PRA, including  
            establishing new contribution limits for state and local  
            elections.  Proposition 208 prohibited any person other than a  
            political party or a small contributor committee from making  
            contributions of more than $100 per election to candidates in  
            small local districts (less than 100,000 residents); $250 per  
            election for Senate, Assembly, Board of Equalization and large  
            local districts; and $500 per election for statewide office.  
            These limits were increased to $250, $500, and $1,000,  
            respectively, for candidates who agreed to abide by specified  
            voluntary expenditure limits.

            On January 6, 1998, the United States District Court for the  
            Eastern District of California entered a preliminary  









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            injunction barring the enforcement of Proposition 208. The  
            Legislature subsequently placed Proposition 34 on the November  
            2000 ballot through passage of SB 1223 (Burton), Chapter 102,  
            Statutes of 2000.  The proposition, which passed with 60.1% of  
            the vote, revised state laws on political campaigns for state  
            elective offices and ballot propositions, and repealed almost  
            all of Proposition 208, which was still enjoined from  
            enforcement.

            While Proposition 34 established new campaign contribution  
            limits for elections to state office, it did not contain  
            contribution limits for elections to local office.  The limits  
            on contributions by individuals contained in Proposition 34  
            ranged from $3,000 (for candidates for Assembly and Senate) to  
            $20,000 per election (for candidates for Governor), and are  
            required to be adjusted for inflation every two years.  For  
            2015 and 2016, these limits range from $4,200 per election for  
            candidates for Assembly and Senate to $28,200 for candidates  
            for Governor. While local governments have the authority to  
            adopt contribution limits for elections to local offices in  
            their jurisdictions, state law does not impose limits on  
            contributions to candidates for local office.
          3)Local Campaign Ordinances:  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  
            jurisdictions to impose campaign filing requirements that  
            differed from those in the PRA, while 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  









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            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 posts those ordinances on its website. The FPPC's  
            website currently includes campaign finance ordinances from 19  
            counties, 141 cities, and one special district.  

          The campaign ordinances adopted by local governments in  
            California vary significantly in terms of their scope.  Some  
            local ordinances are very limited in scope, while others are  
            much more extensive.  In some cases, the 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.

          According to a recent report prepared by California Common  
            Cause, approximately 23 percent of cities and 28 percent of  
            counties in the state have adopted local campaign contribution  
            limits.  Of the 124 local jurisdictions identified in the  
            report as having adopted local campaign contribution limits,  
            only one (Alameda County) has a contribution limit that is  
            higher than the $4,200 per election limit that would be  
            imposed by this bill.  More than 90 percent of the cities that  
            have adopted contribution limits have limits of $1,000 or  
            less.  By contrast, about half of the counties that adopted  
            contribution limits have limits of $1,000 or less.

          4)FPPC and Campaign Regulation:  With a few limited exceptions,  
            provisions of state law regulating campaign finance generally  
            are found within the PRA, and the FPPC has the primary  









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            responsibility for administering and enforcing those  
            provisions.  Given the FPPC's role as the primary entity  
            responsible for administering, interpreting, and enforcing the  
            state's campaign finance laws, it could be argued that this  
            bill indirectly amends the PRA, and therefore should be  
            subject to restrictions that apply to bills that seek to amend  
            the PRA.  The fact that local contribution limits previously  
            have been imposed at the state level through amendments to the  
            PRA (as described above) could provide some support to the  
            argument that the imposition of local contribution limits in  
            state law is a policy that falls within the scope of the PRA.



          On the other hand, as originally enacted, the PRA did not impose  
            campaign contribution limits, and none of the enumerated  
            purposes of the PRA relate to imposing restrictions on  
            campaign contributions.  Instead, the PRA's enumerated  
            purposes generally focus on disclosure of campaign receipts  
            and expenditures.  Provisions of state law that explicitly  
            allow local jurisdictions to enact their own contribution  
            limits are currently located in the Elections Code and the  
            Education Code, not in the PRA, and were first enacted by the  
            Legislature in the same year that the PRA was approved by the  
            voters (although those provisions were signed into law after  
            the adoption of the PRA).  Finally, the PRA expressly provides  
            that its provisions do not "prevent[] the Legislature or any  
            other state or local agency from imposing additional  
            requirements on any person if the requirements do not prevent  
            the person from complying with" the PRA.  All these factors  
            support the argument that this bill is not an indirect  
            amendment of the PRA.

          Regardless of whether this bill is an indirect amendment to the  
            PRA, however, the committee may wish to consider whether it  
            makes sense, as a policy matter, to make its provisions part  
            of the PRA, and to have it enforced and interpreted by the  









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            FPPC.  On the one hand, making the FPPC responsible for  
            enforcing campaign contribution limits for hundreds of local  
            government agencies likely would significantly increase the  
            workload at the FPPC, which could have a significant expense  
            and could negatively impact the administration and enforcement  
            of this bill and of the current provisions of the PRA.  On the  
            other hand, because the PRA regulates campaign disclosure, it  
            already governs local campaign contributions and spending.  In  
            fact, as noted above, this bill generally adopts the PRA's  
            definitions of various terms.  Bringing this bill's  
            restrictions within the PRA, and having it be administered by  
            the same entity that generally administers the state's other  
            campaign laws, could promote greater consistency in the  
            interpretation and enforcement of the state's campaign finance  
            laws.  Additionally, candidates and campaign committees would  
            have a single point of contact for inquiries, advice, and  
            opinions about compliance with campaign finance laws.

          Furthermore, having the FPPC enforce the provisions of this bill  
            may lead to more timely and robust enforcement.  The FPPC has  
            the authority to impose fines of up to $5,000 for violations  
            of the PRA through an administrative enforcement process.  A  
            substantial majority of enforcement actions for violations of  
            the PRA are handled through that administrative process,  
            thereby eliminating the need for more time-consuming and  
            resource-intensive civil or criminal actions in the courts.   
            As currently drafted, this bill does not offer an  
            administrative enforcement process-any violation of the  
            contribution limits imposed by this bill would have to be  
            pursued civilly or criminally (except in situations where  
            local jurisdictions have established their own administrative  
            enforcement process).  Moreover, it is unclear whether it  
            would be workable or realistic to establish a new  
            administrative enforcement process solely for the purposes of  
            enforcing this bill.  By moving the provisions of this bill  
            into the PRA, however, the FPPC would have the ability to use  
            its existing administrative process to bring enforcement  









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            actions against violators.

          Finally, even if the FPPC does not enforce the default  
            contribution limits, this bill nonetheless likely will  
            increase the FPPC's workload.  The existence of contribution  
            limits tends to be associated with an increase in independent  
            expenditures, so this bill may increase advice requests and  
            enforcement actions related to independent expenditures,  
            including rules that limit coordination between candidates and  
            independent expenditure committees.  Additionally, attempts to  
            circumvent contribution limits could result in an increase in  
            laundering of campaign contributions.  Because laws governing  
            independent expenditures and the laundering of campaign  
            contributions are contained in the PRA, the FPPC would have  
            jurisdiction and enforcement authority over these matters even  
            if it does not enforce the contribution limits imposed by this  
            bill.

          5)Arguments in Support:  In support of this bill, California  
            Common Cause writes:


               Under current law, local governments may enact local  
               contribution limits, but the vast majority have not  
               done so. Only 23 percent of cities and 28 percent of  
               counties have enacted local limits; the percentage of  
               districts with limits is even lower. In jurisdictions  
               without limits, contributors can give any amount to  
               candidates for local office - even contributions  
               exceeding the average Californian's annual salary.  
               Common Cause's research of local contributions found  
               many examples of contributors giving $50,000 to  
               $90,000+ contributions. In some cases, more than 50  
               percent of a candidate's campaign war chest came from  
               just one or two contributors.











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               Unfettered campaign contributions undermine democracy.  
               Whenever a candidate is financially dependent on just  
               a handful of contributors there is a risk that they  
               will value their contributors' interests over those of  
               the people they serve. Moreover, requiring candidates  
               to seek support in smaller amounts but from a broader  
               number of contributors has a democratizing effect, and  
               can help the competitiveness of community-supported  
               candidates who do not have access to wealthy patrons.

          6)Concerns Expressed: While not taking an official position,  
            Urban Counties of California (UCC) submitted a letter to the  
            committee expressing concerns with this bill.  Many of those  
                                                                                      concerns appear to be addressed by recent amendments to the  
            bill.  Two of the concerns expressed by UCC, however, do not  
            appear to be addressed by recent amendments.  Specifically,  
            UCC writes that it is "unclear if there are sufficient  
            resources for [district attorneys] to handle the potential  
            volume of cases" that would result from the bill, and UCC  
            expresses concern that "there could be a conflict of interest  
            for [the district attorney's] office to handle all of the  
            enforcement."  


          7)Technical Amendments:  This bill repeals provisions of law  
            that allow counties, cities, and districts to limit campaign  
            contributions in local elections, and instead provides that  
            local governments may enact contribution limits that prevail  
            over the default limits established by this bill.  This bill  
            does not, however, repeal Section 35177 of the Education Code,  
            which is a similar provision of law that allows school  
            districts to limit campaign contributions and expenditures.   
            To ensure consistency and avoid ambiguity, committee staff  
            recommends that this bill be amended to repeal Section 35177  
            of the Education Code.










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          This bill expressly permits a local government to impose its own  
            contribution limits that differ from those that are otherwise  
            imposed by this bill.  The bill's language is ambiguous,  
            however, on the question of whether existing local ordinances  
            that impose campaign contribution limits would prevail over  
            the limits set by this bill, or if a local jurisdiction would  
            have to re-adopt local contribution limits.  Committee staff  
            recommends that this bill be amended to clarify that any  
            existing local ordinances that impose campaign contribution  
            limits will continue to be valid if this bill becomes law, and  
            the limits set by those ordinances will prevail over the  
            default limits set by this bill.



          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Clean Money Campaign


          California Common Cause


          League of Women Voters of California


          MOVI, Money Out Voters In











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          Opposition


          None on file.




          Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094