BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: AB 2357 HEARING
DATE: 6/15/10
AUTHOR: SALDANA ANALYSIS BY:
Darren Chesin
AMENDED: 4/8/10
FISCAL: YES
SUBJECT
Political Reform Act: reporting expenditures
DESCRIPTION
Existing law requires periodic campaign reports that are
filed pursuant to the Political Reform Act (PRA) to include
details about expenditures made by the committee filing the
report.
This bill additionally 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:
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.
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.
BACKGROUND
Expenditures for Polls . The Fair Political Practices
Commission (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." 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.
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 below, 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
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five versions were submitted for title and summary, another
with four versions, another with three versions, and 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.
COMMENTS
1.According to the author , in the 1960s, there were 47
initiative proposals submitted for review. That number
increased to 391 in the 1990's, 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,
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it is not clearly stated in code. AB 2357 will codify
those findings.
2.So, What's New ? 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.
PRIOR ACTION
Assembly Elections and Redistricting Committee: 7-0
Assembly Appropriations Committee: 13-1
Assembly Floor: 66-5
POSITIONS
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Sponsor: Author
Support: None received
Oppose: None received
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