BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: AB 9 HEARING DATE: 7/7/09
AUTHOR: J. PEREZ ANALYSIS BY:Darren
Chesin
AMENDED: 6/24/09
FISCAL: YES
SUBJECT
PRA of 1974: expenditures
DESCRIPTION
Existing law makes it unlawful for any elected state or
local officer to use or permit others to use public
resources for a campaign activity. "Campaign activity"
means an activity constituting a contribution or
expenditure as defined under the Political Reform Act
(PRA). However, 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.
Existing law defines "contribution" as a payment, a
forgiveness of a loan, a payment of a loan by a 3rd party,
or an enforceable promise to make a payment except to the
extent that full and adequate consideration is received,
unless it is clear from the surrounding circumstances that
it is not made for political purposes.
Existing law defines "independent expenditure" as an
expenditure in connection with a communication which
expressly advocates the election or defeat of a clearly
identified candidate or the qualification, passage, or
defeat of a clearly identified measure, or taken as a whole
and in context, unambiguously urges a particular result in
an election but which is not made to or at the behest of
the affected candidate or committee.
This bill would provide that a "contribution" also includes
the payment of public moneys by a state or local
governmental agency for a communication to the public that
satisfies both of the following:
The communication expressly advocates the election or
defeat of a clearly identified candidate or the
qualification, passage, or defeat of a clearly identified
measure, or, taken as a whole and in context,
unambiguously urges a particular result in an election.
The communication is made at the behest of the affected
candidate or committee.
This bill would also include in the existing definition of
"independent expenditure" the payment of public moneys by a
state or local governmental agency in connection with a
communication which expressly advocates the election or
defeat of a clearly identified candidate or the
qualification, passage or defeat of a clearly identified
measure, or taken as a whole and in context, unambiguously
urges a particular result in an election but which is not
made to or at the behest of the affected candidate or
committee.
BACKGROUND
Recent Litigation . 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 Fair
Political Practices Commission's (FPPC's) regulations that
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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 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."
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.
Related FPPC Regulation . At its December, 2008 meeting,
the FPPC adopted a regulation that is substantially similar
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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.
COMMENTS
1.According to the author , 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) 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.
In order to address this issue, AB 9 adds to the definition
of "independent expenditure" a payment of public moneys
by a state or local governmental agency. Additionally
this bill states that "contribution" further includes the
payment of moneys by a state or local government agency.
2.My Statute Can Beat Up Your Regulation . Since the FPPC
has already adopted a regulation that is substantively
identical to this bill, the need for this bill is
unclear.
PRIOR ACTION
Assembly Elections & Redistricting Committee 6-0
Assembly Floor 72-3
POSITIONS
Sponsor: Author
Support: None received
Oppose: None received
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