BILL ANALYSIS
AB 2357
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2357 (Saldana) - As Amended: April 8, 2010
SUBJECT : Political Reform Act of 1974.
SUMMARY : Requires certain expenditures made in connection with
polls or surveys regarding ballot measures to be disclosed on
campaign reports. Specifically, this bill requires a committee
that is primarily formed for the qualification or support of, or
opposition to, an initiative or ballot measure, to include the
following information in campaign statements filed by the
committee:
1)The amount of each expenditure made in connection with a poll
or survey used in a communication to influence voters
regarding the qualification or passage of an initiative or
ballot measure.
2)The amount of each expenditure made in connection with a poll
or survey used to gauge the public's opinion on the ballot
title and summary of an initiative or ballot measure.
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)Requires periodic campaign reports that are filed pursuant to
the PRA to include details about expenditures made by the
committee filing the report.
FISCAL EFFECT : Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
In the 1960s, there were 47 initiative proposals submitted
for review. That number increased to 391 in the 1990's,
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and then jumped to 647 in the 2000-2009 decade. One
contributing factor for this drastic increase is that
initiative proponents frequently choose to submit numerous,
largely duplicative, measures to the State to have their
ballot titles and summaries drafted, with the intent of
ultimately pursuing signatures for only one of them. In
one particularly egregious example this year, a total of
seven similarly-worded initiative proposals were filed. In
this practice, sometimes referred to as 'ballot-title
shopping', proponents will then commission polls or surveys
to gauge the public's opinion of the nuanced ballot titles
and summaries in order to determine which version might
fare the best in a petition drive, or raise the most money
from potential contributors.
While it is not the intent of this bill to alter that
practice, it is clear that these polling activities are on
par with other communication efforts to qualify and pass an
initiative, and therefore should adhere to the same
disclosure requirements.
The [FPPC] has found on numerous occasions that when
results of a poll or survey are used in a communication to
advocate the qualification or passage of a ballot measure,
the cost of conducting the poll or survey constitutes a
reportable expenditure. While records of this
determination can be found in FPPC Advice Letters, it is
not clearly stated in Code. AB 2357 will codify those
findings.
2)Initiatives With Multiple Versions : While it is not clear how
often the proponents of an initiative measure submit multiple
versions of the same initiative measure for a title and
summary with the intent of "ballot title shopping," as
described by the author above, it has become increasingly
common for proponents of state initiative measures to submit
multiple similar versions of a proposal to the Attorney
General (AG). In a nine day period in November of last year,
two attorneys from the same law firm filed seven different
versions of an initiative dealing with taxation of community
hospitals, including four different versions of the initiative
filed by a single attorney on a single day. The author also
provided examples from 2009 and 2010 of an initiative measure
where five versions were submitted for title and summary,
another with four versions, another with three versions, and
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three others with two versions. Oftentimes, the different
versions of the measure had the same proponent or proponents,
and the different versions were filed within days of each
other or on the same day. In 2005, when a record of 152
measures were submitted to the AG for title and summary, more
than a dozen initiative proponents submitted multiple versions
of their measures to the AG for title and summary. By
comparison, the practice of initiative proponents submitting
multiple versions of the same measure to the AG for title and
summary was relatively rare a decade ago.
3)Expenditures for Polls : The FPPC has long held that an
initiative, referendum, or recall does not become a "measure"
for the purposes of the PRA until the proponents begin to
circulate petitions to qualify the proposal for the ballot.
However, it is also the longstanding position of the FPPC that
once a proposal becomes a measure, campaign statements filed
by committees supporting or opposing the measure must include
contributions received and expenditures made in anticipation
of the proposal being placed on the ballot, even if those
contributions and expenditures were made before the proposal
became a "measure" (In re: Fontana (1976), 2 FPPC Ops. 25).
As such, expenditures for a poll or survey conducted by the
proponents or opponents of a potential ballot measure are not
necessarily exempt from disclosure simply because those
expenditures were made prior to petitions being circulated to
qualify that measure for the ballot. The determination of
whether such expenditures are required to be reported under
existing law depends on the manner in which the poll results
are used.
In requests for advice, the FPPC has distinguished between
payments made by an entity other than a committee that are
exploratory in nature from payments that are used to expressly
advocate for the qualification or passage of a ballot measure.
Given that general policy, an FPPC campaign manual indicates
that the cost of a poll or survey is a reportable expenditure
under the PRA if the results of that poll or survey are used
in a communication to influence voters regarding the
qualification or passage of a measure. However, the same
manual indicates that the costs of a poll or survey to
determine the feasibility of drafting a measure are not
reportable as long as the results from the poll or survey are
not used in a communication to influence voters.
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This bill expressly requires committees that are primarily
formed for the qualification or support of, or opposition to,
an initiative or ballot measure, to disclose the amount of
money spent on certain polls or surveys on campaign statements
if certain conditions are met. First, this bill requires
expenditures on a poll to be disclosed if that poll is used in
a communication to influence voters regarding the
qualification or passage of an initiative or ballot measure.
Because expenditures on polls are already required to be
disclosed in these circumstances under the FPPC's
interpretation of the PRA, this provision of the bill has
little substantive effect other than to codify the FPPC's
interpretation.
This bill also requires, however, that expenditures on polls by
a committee primarily formed for the qualification or support
of, or opposition to, an initiative or ballot measure be
disclosed on campaign reports if those polls are used to gauge
the public's opinion of the ballot title and summary of an
initiative or ballot measure. This provision of the bill
appears to require disclosure of certain polling expenditures
that are not required to be disclosed under existing law.
This bill would not, however, require disclosure of polling
expenditures if the proposal in question did not become a
measure, nor would this bill require an entity to file
campaign reports solely by virtue of that entity having
conducted a poll to gauge the public's opinion of a ballot
title and summary of an initiative or ballot measure if that
entity was not otherwise required to file reports pursuant to
the PRA.
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,
must further the purposes of the initiative and require a
two-thirds vote of both houses of the Legislature.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
AB 2357
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Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094