BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Ron Calderon, Chair
BILL NO: AB 1430 HEARING DATE:
7/10/07
AUTHOR: GARRICK ANALYSIS BY:
Darren Chesin
AMENDED: 5/8/07
FISCAL: NO
SUBJECT
Political Reform Act: contributions: member communications
DESCRIPTION
Existing law 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 are not contributions or expenditures, if
those payments are not made for general public advertising
such as broadcasting, billboards, and newspaper
advertisements. However, such payments made by a political
party for communications to its members that would
otherwise qualify as contributions or expenditures are to
be reported in the same manner as contributions or
expenditures.
Existing law provides that nothing in the Political Reform
Act (PRA) shall nullify contribution limitations or
prohibitions of any local jurisdiction that apply to
elections for local elective office, except that those
limitations and prohibitions cannot conflict with the
provision of state law that provides that payments made by
an organization for communications to its members are not
contributions or expenditures.
Existing law prohibits a person from making a contribution
to a political party totaling more than $30,200 in a
calendar year for the purpose of making contributions for
the support or defeat of candidates for elective state
office, or for the purpose of making expenditures at the
behest of a candidate for elective state office for
communications to party members related to the candidate's
candidacy for elective state office.
This bill prohibits local governments from adopting
campaign finance ordinances that restrict communications
between an organization and its members unless state law
similarly restricts such communications. Specifically,
this bill prohibits a local jurisdiction from doing any of
the following:
Imposing source restrictions on payments for member
communications that are not expressly made applicable to
member communications by a state statute or by a
regulation adopted by the Fair Political Practices
Commission (FPPC).
Adopting limits on payments to a political party
committee for member communications that are not
expressly made applicable to member communications by a
state statute or FPPC regulation.
Adopting limits on the scope of payments considered
directly related to the making of a member communication,
including costs associated with the formulation, design,
production and distribution of the communication such as
surveys, list acquisition, and consulting fees that are
not expressly made applicable to member communications by
a state statute or FPPC regulation.
BACKGROUND
Member Communications . Proposition 34 was placed on the
November, 2000 ballot by SB 1223 (Burton), Chapter 102,
Statutes of 2000. The proposition, which passed with 60%
of the vote, revised state laws on political campaigns for
state elective offices and ballot propositions. One of the
provisions of Proposition 34 provided that payments for
communications by an organization to members, employees,
shareholders, or families of members, employees, or
shareholders of that organization (commonly known as
"member communications") for the purpose of supporting or
opposing a candidate or a ballot measure are not
AB 1430 (GARRICK) Page
2
contributions or independent expenditures, provided those
payments are not made for general public advertising such
as broadcasting, billboards, and newspaper advertisements.
Additionally, Proposition 34 prohibited local jurisdictions
from adopting contribution limitations or prohibitions on
member communications that conflicted with the member
communications provisions of Proposition 34.
Because Proposition 34 provides that member communications
are not contributions or expenditures, contribution limits
generally do not apply to member communications. However,
at the state level, there is at least one circumstance
under which contribution limits apply to contributions that
are intended for use to finance member communications.
While Proposition 34 allows a political party committee to
receive unlimited contributions "provided that the
contributions are used for purposes other than making
contributions to candidates for elective state office," it
also prohibits a person from contributing more than $30,200
per calendar year to a political party for the purpose of
making contributions for the support or defeat of
candidates for elective state office, or for the purpose of
making expenditures at the behest of a candidate for
elective state office for communications to party members
related to the candidate's candidacy for elective state
office.
Thus, if a political party committee coordinates with a
candidate on a communication to that party's members about
the candidate's candidacy for state office, the political
party is required to use money raised subject to the
contribution limits to pay for that communication.
However, to the extent that a political party committee
makes a communication to party members related to a
candidate's candidacy for elective state office, but the
communication was not made at the behest of that candidate,
the political party committee can use money that it raised
that was not subject to contribution limits to pay for that
communication.
Ongoing Regulatory Process . In implementing the provisions
of the PRA governing member communications, the FPPC has
AB 1430 (GARRICK) Page
3
adopted a regulation that sets parameters for what
constitutes a "payment for communications to members" by an
organization. Among other provisions, Title 2, California
Code of Regulations, section 18531.7 (Regulation 18531.7)
defines various terms used in the member communications
statute (including "organization," "member," "shareholder,"
and "family"); specifies what constitutes a payment for
communications; provides a safe harbor for communications
inadvertently directed to nonmembers; addresses payments
for member communications made at the behest of a candidate
or committee; and specifies the reporting requirements for
member communications made by entities that are considered
committees under the PRA.
The FPPC is currently reviewing its regulations governing
member communications, and is deciding whether to modify
Regulation 18531.7, to adopt new regulations, or both.
Among the issues being considered by the FPPC in reviewing
its member communications regulation are whether to extend
the regulation (or adopt a new regulation) to govern member
communications by political parties (Regulation 18531.7
defines the term "organization" to exclude political
parties, so communications by political parties are not
currently covered by Regulation 18531.7), and what rules
and restrictions (if any) should be placed on member
communications by political parties.
Fulhorst Opinion Request . Some of the issues that the FPPC
plans to address in reviewing its regulations governing
member communications, as detailed above, came to light due
to an opinion request sent to the FPPC from Stacey
Fulhorst, the Executive Director of the City of San Diego
Ethics Commission. Ms. Fulhorst posed 10 questions to the
FPPC on how existing law governing member communications
was to be enforced, including (1) whether a member
communication made by a political party at the behest of a
candidate is considered a contribution to that candidate,
(2) whether contributions earmarked for member
communications at the request of a candidate are considered
contributions to the candidate, and (3) whether a local
jurisdiction can enact a law defining as a "contribution"
any payment for member communications that are made at the
behest of a candidate, and therefore subjecting such
payments to local contribution limits.
AB 1430 (GARRICK) Page
4
The FPPC ultimately declined to issue an opinion in
response to Ms. Fulhorst's request, and instead decided to
incorporate the questions raised in her request into its
review of regulations governing member communications.
However, because the issues raised in Ms. Fulhorst's
request are directly related to some of the issues
addressed by this bill, any new or revised regulations that
result from the FPPC's review of its member communication
regulations could directly impact issues addressed by this
bill.
COMMENTS
1.According to the author , AB 1430 would clarify existing
law regarding protected 'member communications' for
political parties, labor unions, and other membership
organizations.
Existing state law allows local jurisdictions to establish
regulations 'not in conflict' with state law or
regulations promulgated by the FPPC. However, some local
jurisdictions have begun the process of attempting to
promulgate local laws and regulations that conflict with
the clear meaning of the Political Reform Act and FPPC
regulations and which, as such, are in clear conflict
with both bodies.
In particular, local jurisdictions have begun the process
of attempting to restrict the First Amendment free speech
of political parties and labor unions to communicate with
their memberships without regulation by or from local
jurisdictions.
This bill clarifies the clear intent of the Political
Reform Act and FPPC regulations to allow membership
organizations to communicate with their own members, and
the primacy of state government's authority to interpret
the clear meaning of the Political Reform Act.
Political parties, labor unions, and other membership
organizations have a clear First Amendment right,
bolstered by the actual language and clear intent of the
AB 1430 (GARRICK) Page
5
Political Reform Act and the FPPC, to communicate with
their own members. This bill clearly defines this right,
so that there will be no future confusion.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 7-0
Assembly Floor: 77-0
POSITIONS
Sponsor: State Building and Construction Trades Council
Support: American Motorcyclist Association District 37
Association for Los Angeles Deputy Sheriffs
California Democratic Party
California Labor Federation
California League of Conservation Voters
California Off-Road Vehicle Association (CORVA)
California Pro Life Council
California Republican Party
California State Council of Laborers
National Rifle Association of America
National Right to Life Committee
Peace Officers Research Association of California
(PORAC)
San Diego Off-Road Coalition (SDORC)
Service Employees International Union (SEIU),
Local 1000
Oppose: California Clean Money Campaign
California Common Cause
City of San Diego Ethics Commission
League of Women Voters of California
AB 1430 (GARRICK) Page
6