BILL ANALYSIS
AB 9
Page 1
Date of Hearing: May 5, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 9 (John Perez) - As Introduced: December 1, 2008
SUBJECT : Political Reform Act of 1974: expenditures.
SUMMARY : Specifies that a payment of public moneys by a state
or local government agency for a communication regarding a
ballot measure is an expenditure for the purposes of the
Political Reform Act (PRA) unless certain conditions are met.
Specifically, this bill :
1)Provides that an "expenditure," for the purposes of the PRA,
includes the payment of public moneys by a state agency or
local government agency, or by an agent of that agency, for a
communication to the electorate within the jurisdiction of
that agency regarding a clearly identified measure, unless
either of the following applies:
a) The information in the communication constitutes a fair
and impartial presentation of relevant facts relating to
the measure; or,
b) The communication is otherwise required by law.
2)Provides that for the purposes of this bill, a communication
clearly identifies a measure if either of the following
applies:
a) In the case of a measure that has qualified to be placed
on the ballot:
i) The communication states a proposition number,
official title or popular name associated with the
measure; or,
ii) The communication refers to the subject matter of
the measure and either states that the measure is before
the people for a vote or, taken as a whole and in
context, unambiguously refers to the measure.
b) In the case of a measure that has not qualified to be
placed on the ballot, if the communication refers to the
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subject matter of the measure and to the qualification
drive.
EXISTING LAW :
1)Creates the Fair Political Practices Commission (FPPC), and
makes it responsible for the impartial, effective
administration and implementation of the PRA.
2)Makes it unlawful for any elected state or local officer to
use or permit others to use public resources for a campaign
activity. Provides that "campaign activity" means an activity
constituting a contribution or expenditure as defined under
the PRA. Provides that the use of public resources for
providing information to the public about the possible effects
of any bond issue or other ballot measure on state activities,
operations, or policies is not prohibited provided that the
information activities are otherwise authorized by law, and
the information provided constitutes a fair and impartial
presentation of relevant facts.
FISCAL EFFECT : Keyed non-fiscal by the Legislative Counsel.
COMMENTS :
1)Purpose of the Bill : According to the author:
Existing law states that no agency or department of the
state may use its publications to advise state employees of
any constitutional officer's choice of candidates for
public office or for recommending positions on specific
ballot propositions not related to the functions of that
agency or department. (Elections Code Section 18390.)
This past election cycle concerns were raised that some
local agencies were blurring the line between providing
information and "advocating" on behalf of certain measures
on the ballot. In Los Angeles, the LA Metropolitan Transit
Authority (MTA) has posted a page on its website devoted to
the Measure R half-cent sales tax increase campaign. It
stopped short of urging people to vote for Measure R but
said of transit resources, "more is needed" to reduce
traffic congestion. Under pressure, MTA removed the [Web
page]. Similar concerns were raised by the FPPC on
campaigns across the state.
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A recent court decision muddied the issue by stating that a
communication is not a political expenditure unless the
communication contains express advocacy, according to a
report by the state Fair Political Practices Commission.
In order to address this issue, AB 9 clarifies existing law
that an expenditure includes the payment of public moneys
by a state agency or local government agency, or by an
agent of that agency, for a communication to the electorate
within the jurisdiction of that agency regarding a clearly
identified measure, except if the communication constitutes
a fair and impartial presentation of the facts relating to
the measure or the communication is otherwise required by
law.
2)Recent Litigation : As the author notes above, a California
Appellate Court recently ruled that a communication paid for
by a public entity regarding a measure that was to appear on
the ballot was not prohibited by law unless the communication
expressly advocated an election outcome on the measure. In
that case, Vargas v. City of Salinas (2005) 135 Cal App. 4th
361, the Sixth District Court of Appeals concluded that the
City of Salinas had not violated existing state law
prohibiting the use of public resources for campaign activity
when it made communications using public funds in connection
with a local measure to repeal the city's utility tax. The
Court found that because the communications produced by the
City using public funds did not "expressly advocate" an
election outcome, they were permitted under existing law. The
Court's decision in Vargas referenced the FPPC's regulations
that specify what it means for a communication to "expressly
advocate" an election outcome. Pursuant to those regulations,
a communication "expressly advocates" an election outcome if
it contains express words of advocacy such as "vote for,"
"elect," "support," "cast your ballot," "vote against,"
"defeat," "reject," "sign petitions for" or otherwise refers
to a clearly identified candidate or measure so that the
communication, taken as a whole, unambiguously urges a
particular result in an election.
On April 20, 2009, the California Supreme Court upheld the
Appellate Court's decision in Vargas , finding that the City of
Salinas did not violate existing state law when it used public
resources to produce communications discussing the measure to
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repeal the city's utility tax ( Vargas v. City of Salinas
(2009) S140911). However, the Supreme Court found that the
Appellate Court had ruled incorrectly when it found that a
communication created using public resources had to "expressly
advocate" an election outcome in order for that communication
to be illegal under existing law. Instead, the Supreme Court
found that a municipality's expenditure of public funds for
materials or activities that reasonably are characterized as
campaign materials or activities is not authorized by existing
law, even when the message delivered does not constitute
express advocacy. Writing for a unanimous court, Chief
Justice Ron George wrote that "[i]f a public entity could
expend public funds for any type of election-related
communication so long as the communication avoided 'express
words of advocacy' and did not 'unambiguously urge[] a
particular result,' the public entity easily could overwhelm
the voters by using the public treasury to finance bumper
stickers, posters, television and radio advertisements, and
other campaign material containing messages that, while
eschewing the use of express advocacy, nonetheless as a
realistic matter effectively promote one side of an election."
[Internal citation omitted.] Instead, the Supreme Court
found that public resources may be used to create and
disseminate communications relating to a ballot measure only
when such communications are informational material containing
a fair and impartial presentation of relevant facts.
3)Related FPPC Regulation : At its December 2008 meeting, the
FPPC adopted a regulation that is substantially similar to the
policy proposed by this bill. That regulation provides that a
payment of public moneys by a state or local government
agency, or by an agent of the agency, for communications
directed to the voters of the jurisdiction, about a measure
are considered an expenditure unless the information provided
constitutes a fair and impartial presentation of the facts
related to the measure. Because the FPPC has already adopted
a regulation that is substantively identical to this bill, the
need for this bill is unclear.
4)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,
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must further the purposes of the initiative and require a
two-thirds vote of both houses of the Legislature.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees,
AFL-CIO
Fair Political Practices Commission
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094