BILL ANALYSIS
AB 2622
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 2622 (Smyth) - As Introduced: February 19, 2010
SUBJECT : Political Reform Act of 1974: campaign contributions.
SUMMARY : Prohibits members of the Legislature from accepting
campaign contributions from June 16 until the Budget Bill is
passed by the Legislature. Specifically, this bill prohibits a
member of the Legislature, in any year in which the Legislature
does not pass and send a Budget Bill to the Governor by midnight
on June 15, from accepting any campaign contributions from June
16 until the date that the Budget Bill is passed by the
Legislature and sent to the Governor.
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)Limits campaign contributions to candidates for elective state
office as follows:
a) To a candidate for elective state office other than a
candidate for statewide elective office, no person may
contribute more than $3,900 per election and no small
contributor committee may contribute more than $7,800 per
election;
b) To a candidate for elective statewide office other than
a candidate for Governor, no person may contribute more
than $6,500 per election and no small contributor committee
may contribute more than $12,900 per election;
c) To a candidate for Governor, no person or small
contributor committee may contribute more than $25,900 per
election.
3)Requires the FPPC to adjust these contribution limits
biannually to reflect any increase or decrease in the Consumer
Price Index.
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4)Provides for administrative, civil, and criminal penalties for
violations of the PRA.
FISCAL EFFECT : Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS :
1)Purpose of the Bill : According to the author:
The most recent Field Poll shows the California Legislature
with an approval rating of 13 percent, and the vast
majority of Californians are frustrated with a Legislature
that they perceive as wasting time and neglecting the
important issues facing our state. Each year, Californians
grow increasingly frustrated as legislators hold
fundraisers for their next elections while budget deadlines
come and go with no solutions.
In 2008, there were 148 fundraising events held by sitting
members of the Assembly and Senate between June 16 and
September 23, the day that the budget bill was finally
signed. More than a third of those events occurred during
four days in August - two months after the June 15
deadline.
Regaining the trust of our constituents is an important
aspect of getting California back on track. That begins
with changing the public perception of the Legislature.
Legislators need to send a message that doing the job we
were elected to do is more important than soliciting
contributions to fund our next race.
AB 2622 prohibits sitting members of Senate and Assembly
from engaging in fundraising activities between June 16 and
the date that the annual budget bill is passed and sent to
the Governor. As legislators, we should be focused solely
on passing the budget when the budget bill is late.
Recent efforts to place restrictions on fundraising
activities have raised concerns about potential free speech
infringement. This bill does not penalize citizens from
contributing to campaigns, nor does it penalize members
from receiving those contributions. It simply prohibits
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active solicitation of those contributions during a
specified period of time.
California would not be alone in placing restrictions on
fundraising activities. According to a 2008 report by the
National Conference of State Legislatures, 22 other states
prohibit all fundraising while the legislature is in
session. In 2009, the Wisconsin Assembly passed a house
rule that prohibits fundraising until a budget is passed.
2)Blackout Periods in Other States : The author's statement
refers to research from the National Conference on State
Legislatures (NCSL) indicating that 28 states have placed
various limits on fundraising during the legislative session.
Of those 28 states, 12 prohibit or restrict only lobbyist
contributions made during the legislative session. In fact,
California prohibits lobbyists who are registered to lobby
before the legislature from making contributions to any
legislator or any candidate for state legislature at any time,
not just during the legislative session. As a result,
although the NCSL report does not include California in the
list of states that restricts fundraising during the
legislative session, using the NCSL's methodology, California
would be the 29th state that limits the giving or receiving of
contributions during the legislative session.
Sixteen states have contribution blackout periods that apply to
contributions made by individuals or organizations other than
lobbyists. In one of those states, Oregon, the Attorney
General issued an opinion that the statute is unconstitutional
and stated that it would not be enforced. In the remaining 15
states, the length of the blackout period generally runs the
length of the legislative session, though in some cases the
blackout period extends for a certain time period before or
after the legislative session, and in some cases there are
exceptions to the blackout periods as an election approaches.
3)Contribution Blackout Period and First Amendment Concerns :
This measure could be interpreted as a violation of the United
States and California Constitutions' guarantees to free
speech. While the right to freedom of speech is not absolute,
when a law burdens core political speech, the restrictions on
speech generally must be "narrowly tailored to serve an
overriding state interest," McIntyre v. Ohio Elections
Commission (1995), 514 US 334.
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State and federal courts have repeatedly held that the giving
and spending of campaign money involves the exercise of free
speech. The United States Supreme Court found in Buckley v.
Valeo (1976), 424 US 1 that any "restriction on the amount of
money a person or group can spend on political communication
during a campaign necessarily reduces the quantity of
expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience
reached." The Supreme Court in Buckley ruled that expenditure
limits during a campaign were unconstitutional for this
reason. In the same case, however, the court upheld campaign
contribution limits, noting that "[b]y contrast with a
limitation on expenditures for political expression, a
limitation upon the amount that any one person or group may
contribute to a candidate or political committee entails only
a marginal restriction upon the contributor's ability to
engage in free communication." The Buckley court was cautious
to note that not all campaign contribution limits would be
constitutionally permissible, however, writing "[g]iven the
important role of contributions in financing political
campaigns, contribution restrictions could have a severe
impact on political dialogue if the limitations prevented
candidates and political committees from amassing the
resources necessary for effective advocacy." The Supreme
Court has repeatedly upheld its ruling in Buckley , most
recently in McConnell v. Federal Election Commission (2003)
No. 02-1674.
One issue presented by this bill is whether its provisions would
prevent candidates from amassing the resources necessary for
effective advocacy and whether the state's interest in
prohibiting campaign contributions to elected state officials
is sufficient to justify this limit on contributors' and
candidates' free speech rights.
In at least four states, state or federal courts have struck
down laws that prohibited legislators from receiving campaign
contributions while the legislature was in session. In 1990,
the Florida State Supreme Court ruled in State v. Dodd (1990)
561 So.2d 263, that a state law that prohibited a candidate
running for legislative office or a statewide office from
accepting or soliciting a campaign contribution during a
regular or special session of the Legislature was
"unconstitutional for its overbroad intrusion upon the rights
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of free speech and association." The court found a number of
defects to the Florida law, including that it placed
restrictions on candidates "who could not possibly be subject
to a corrupting quid pro quo arrangement," and that "by
focusing entirely on the legislative session, the Campaign
Financing Act fails to recognize that corrupt campaign
practices just as easily can occur some other time of the
year." Additionally, the court found that the contribution
blackout period would cut off "the flow of resources needed
for effective advocacy during a crucial portion of the
election year," in violation of the test established in
Buckley .
The United States District Court for the Eastern District of
Missouri, Eastern Division considered a similar contribution
blackout period in Shrink Missouri Government PAC v. Maupin
(1996) 922 F. Supp. 1413. Unlike the Florida law, Missouri's
Campaign Finance Disclosure Law only applied during a regular
session of the legislature and it did not prohibit the
solicitation of campaign contributions during a legislative
session, but otherwise was substantially similar to the
Florida law. The Maupin court ruled that Missouri's blackout
period "severely impacts on a candidate's ability to expend
funds which in turn impinges upon the rights of individual
citizens and candidates to engage in political debate and
discussion."
Two other federal courts reached similar conclusions in 1998.
The United States District Court for the Eastern District of
North Carolina, Western Division in North Carolina Right to
Life v. Bartlett (1998) 3 F.Supp.2d 675, struck down a North
Carolina law prohibiting lobbyists from making contributions
to legislators and candidates for state legislature during a
legislative session. The court ruled that the North Carolina
law "prevent[ed] candidates from amassing the resources
necessary for effective advocacy," in violation of the test
established in Buckley . The United States District Court for
the Western District of Arkansas, Fayetteville Division in
Arkansas Right to Life v. Butler (1998) 29 F.Supp.2d 540,
struck down an Arkansas law that prohibited statewide elected
officials and legislators from accepting any contribution 30
days before, during, and 30 days after any regular session of
the Legislature. The court concluded that the Arkansas law
was unconstitutional because "it does not take into account
the fact that corruption can occur at any time, and that only
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large contributions pose a threat of corruption." Unlike the
Florida, Missouri, and North Carolina laws, the Arkansas law
did not apply to non-state officeholder candidates for state
office, but only to elected state officials.
The provisions of this bill are distinguishable from the laws in
Florida, Missouri, North Carolina, and Arkansas in that it
does not apply during the entire legislative session, but only
during that portion of the legislative session from June 16th
until the Legislature passes the Budget Bill. Whereas the
contribution blackout periods struck down in Florida,
Missouri, North Carolina, and Arkansas ranged from two to 5
months, this bill would not impose a contribution blackout
period in any year in which the Budget Bill is approved by
June 15th.
However, the Legislature has passed a budget by the
constitutional deadline just once in the last 23 years (last
year, when the Legislature approved the budget act in
February). Excluding last year's budget, the budgets passed
by the Legislature this decade have been approved an average
of almost 50 days after the June 15 constitutional deadline.
The budget for the 2008-09 fiscal year did not pass the
Assembly until September 16, 2008.
Without knowing when the Legislature will pass the budget in
future years, it is impossible to know how long the
contribution blackout period proposed by this bill will last.
Had this bill been in effect the last five years, the blackout
period would have been in effect in four of those five years,
for periods of time of up to 3 months. That period of time
could be construed by a court to be sufficiently long as to
prevent candidates from "amassing the resources necessary for
effective advocacy," particularly given the fact that the
blackout period could occur in the months leading up to the
November general election.
Given these facts, this bill could be susceptible to a
constitutional challenge on the grounds that it would prevent
candidates "from amassing the resources necessary for
effective advocacy," in violation of the Buckley test.
4)Previous Legislation : AB 1411 (Torrico) of 2009 would have
prohibited a member of the Legislature from participating in
any campaign fundraising activity from July 1 until August 15
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or the date the Budget Bill is passed by the Legislature and
sent to the Governor, whichever occurs first. AB 1411 died on
the inactive file on the Assembly Floor. AB 1411 was not
heard in this committee.
AB 16 (Huff) of 2005 would have prohibited contributions to
members of the Legislature and the Governor between the time
that the Governor presents the May revision to his or her
budget proposal and the time that a budget is enacted. AB 16
failed passage in this committee.
5)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.
Opposition
None on file.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094