BILL ANALYSIS �
AB 1881
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Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
AB 1881 (Donnelly) - As Introduced: February 22, 2012
SUBJECT : Political Reform Act of 1974: campaign statements.
SUMMARY : Increases the threshold, from $100 to $5,000, at
which the names and addresses must be publicly reported for
campaign donors who contributed to committees that are not
candidate controlled committees. Specifically, this bill :
1)Provides that a campaign statement of a committee that is not
a candidate controlled committee shall not disclose the name
or street address of a person who has made a cumulative amount
of contributions to the committee that is less than $5,000.
2)Provides that, upon request of the Fair Political Practices
Commission (FPPC), a committee that is not a candidate
controlled committee shall provide the FPPC with the name and
street address of any contributor that is withheld from a
campaign statement pursuant to this bill. Provides that any
record provided to the FPPC pursuant to this provision is not
a public record and is not open for public inspection.
EXISTING LAW :
1)Requires state and local elected officers, candidates, and
committees (including independent expenditure committees) to
file periodic campaign statements disclosing specific
information including, but not limited to, the name, street
address, occupation, and name of employer for each person from
whom a cumulative contribution of $100 or more has been
received during the period covered.
2)Creates the FPPC, and makes it responsible for the impartial,
effective administration and implementation of the Political
Reform Act (PRA).
FISCAL EFFECT : Unknown. State-mandated local program; contains
a crimes and infractions disclaimer.
COMMENTS :
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1)Purpose of the Bill : According to the author:
Although it is important for campaign contributions to
remain transparent, it is not necessary for the public
to have access to every private individual's
information, such as their name, address, occupation,
and employer information. Essentially, this bill
would find a happy medium where large donors, those
who cumulatively contribute $5,000 or more to campaign
committees, would have their information publicly
available. Since arguably large contributions from an
individual are representative of an extreme interest
in what the campaign supports, it would be pertinent
to have the individual's motives transparent.
However, an individual who chooses to donate a lesser
amount than $5,000 should be allowed to have their
privacy protected. It is understood that regardless
of public records, the state would require access to
information regarding all donations to ensure no
illegal activity transpires and this bill still enacts
that provision.
2)Does This Bill Further the Purposes of the PRA ? 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, typically must further the purposes of
the initiative and require a two-thirds vote of both houses of
the Legislature. Bills that propose to amend the PRA but do
not further the purposes of that measure must be submitted to
the voters for their approval.
The PRA expressly provides that two of the purposes of the act
are that "�r]eceipts and expenditures in election campaigns
should be fully and truthfully disclosed in order that voters
may be fully informed and improper practices may be
inhibited," and that "�a]dequate enforcement mechanisms should
be provided for public officials and private citizens in order
that this title will be vigorously enforced" (emphasis added).
It could be argued that, in two respects, this bill does not
further the purposes of the PRA, and therefore must be
submitted to the voters for their approval in order to be
enacted into law.
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When originally enacted, the PRA required the public disclosure
of the names and street addresses of all campaign contributors
who made contributions to a committee of $50 or more.
Subsequent legislation in 1978 (AB 3155 (W. Thomas), Chapter
650, Statutes of 1978) raised the public disclosure threshold
for the names and addresses of campaign contributors to $100.
Adjusting those thresholds for inflation, $50 in 1974 is
approximately the equivalent of $230 today, while $100 in 1978
is approximately the equivalent of $350 today. In either
case, even if the existing or original disclosure thresholds
are adjusted for inflation, the threshold proposed by this
bill would represent a 14 to 20-fold increase in the amount of
money that an entity could contribute to a non-candidate
controlled committee before the name and address of that
person would need to be publicly disclosed. By significantly
increasing the dollar threshold for campaign contributions
before the names and addresses of those contributors are
required to be publicly disclosed, this bill could be viewed
as contrary to the stated purpose of the PRA of ensuring that
receipts in election campaigns are fully disclosed.
Additionally, one of the findings and declarations of the PRA is
that "�p]revious laws regulating political practices have
suffered from inadequate enforcement by state and local
authorities." To protect against inadequate enforcement, the
PRA established a method by which the public may sue to
enforce the PRA. By limiting the public availability of
certain information about contributors of less than $5,000,
this bill may hamper efforts by the public to ensure that the
PRA is adequately enforced. To the extent that the increase
in the dollar threshold at which information about certain
campaign contributors is publicly disclosed makes it more
difficult for the public to ensure that there is adequate
enforcement of the PRA, this bill could be viewed as contrary
to the stated purpose of the PRA of providing adequate
enforcement mechanisms for private citizens in order to ensure
that the PRA is vigorously enforced.
In light of these issues, if the committee is supportive of the
general policy proposed by this bill, the committee may wish
to consider whether this bill furthers the purposes of the
PRA, and if the committee concludes that it does not, the
committee may wish to consider amending this bill to require
its provisions to be submitted to the voters for their
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consideration.
3)Existing Privacy Protections & Redacted Information : As noted
above, under existing law, campaign statements that are filed
by candidates and campaign committees are required to include
the name, street address, occupation, and name of employer of
any person who contributed $100 or more to the committee.
While these details are included in reports that are filed by
candidates and campaign committees, not all of this
information is provided on the version of campaign reports
that are made available on the Internet through the website of
the Secretary of State (SOS). Specifically, subdivision (d)
of Section 84602 of the Government Code prohibits the SOS from
making the street addresses of campaign contributors available
on Internet versions of campaign reports. While the street
addresses of campaign contributors are publicly available to
individuals who view paper copies of reports at the office of
the SOS or at the office of a local filing official, or who
order an electronic copy of the campaign disclosure database
from the SOS, the Legislature chose to exclude this
information from disclosure on the Internet due to concerns
about the privacy of campaign contributors.
4)Disclosure Thresholds at the Federal Level and in Other
States : Federal law requires campaign reports for political
committees of federal election campaigns to disclose detailed
information for contributions of $200 or more. This federal
limit is higher than California's current $100 reporting
threshold. However, according to information from the
Campaign Disclosure Project, only five states have a reporting
threshold for campaign contributions of more than $100, while
45 states and the District of Columbia have a reporting
threshold of $100 or less. The state that has the highest
threshold at which details about campaign contributions must
be publicly disclosed on a campaign report is New Jersey,
where the names and addresses of campaign contributors must be
reported if their contributions exceed $300.
If this bill were enacted into law, California's threshold for
requiring disclosure of the names and addresses of campaign
contributors to committees that are not candidate controlled
committees would be more than 15 times higher than the
threshold for disclosing that information in any other state.
However, even if this bill were enacted into law, the
threshold for public disclosure of the name and street address
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of contributors to candidate controlled committees would
remain at $100.
5)Number of Contributions Under $5,000 : While this bill has the
potential to significantly reduce the number of contributors
for whom identifiable information is provided on campaign
disclosure reports, the impact on any given campaign committee
likely will vary significantly, as demonstrated by a review of
the largest committees in support of and in opposition to each
state ballot measure that appeared on the November 2010
general election ballot. For instance, more than 96 percent
of contributors who gave $100 or more to the largest committee
supporting Proposition 19 (related to marijuana) gave less
than $5,000, and thus their names and addresses would not have
been disclosed on the campaign disclosure reports filed by
that committee had this bill been in effect at that time. On
the other hand, less than seven percent of the contributors
who gave $100 or more to the largest committee opposing
Proposition 24 (related to business taxes) gave less than
$5,000.
For the largest committees supporting and opposing Proposition 8
(same sex marriage) in 2008, just 3.8 percent of the
contributors of $100 or more to the largest committee
supporting that measure gave more than $5,000, while just 1.2
percent of the contributors of $100 or more to the largest
committee opposing Proposition 8 gave more than $5,000.
6)Pending Litigation : On January 9, 2009, ProtectMarriage.com,
a committee in support of Proposition 8 on the November 2008
statewide ballot, filed a lawsuit in the United States
District Court for the Eastern District of California against
the SOS and the FPPC ( ProtectMarriage.com et al. v. Bowen et
al. ). The lawsuit challenged the PRA's campaign disclosure
requirements on contributions to ballot measure committees as
unconstitutional.
Although the District Court upheld the constitutionality of the
PRA's campaign disclosure requirements in November 2011, the
Plaintiffs subsequently appealed the District Court's
decision. The case is currently pending before the Ninth
Circuit Court of Appeals.
7)Technical Issues : There are a number of technical issues with
this bill that the committee may wish to consider:
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a) Information About Occupation and Employer : As currently
drafted, this bill prohibits the name and street address of
a contributor from being disclosed on a campaign report if
that contributor made a cumulative amount of contributions
of less than $5,000 to a committee that is not a candidate
controlled committee. However, this bill does not appear
to eliminate the requirement that information about the
occupation and employer of such individuals be disclosed on
campaign reports. Based on the author's statement that is
printed above, this appears to be contrary to the author's
intent. Furthermore, this could create confusion by
requiring campaign reports to include the occupation and
employer of a contributor even though the name of that
contributor does not appear on the report. If it is the
committee's desire to move this bill forward, the committee
may wish to consider an amendment to provide that
information about a contributor's occupation and employer
will not be included on a campaign report unless that
contributor's name and address are required to be disclosed
on the report.
b) Loans : Existing law requires each committee to publicly
disclose detailed information on a campaign report about
any person from which the committee has received loans
cumulatively totaling $100 or more. As is the case with
the disclosure of contributions, among the information that
must be reported is the name, street address, employer, and
occupation, of each person who has provided a loan above
the reporting threshold. The current version of this bill
does not modify the information that must be disclosed for
individuals who make loans of less than $5,000 to
non-candidate controlled committees. This could result in
an anomalous situation where a person who made a loan to a
campaign of $150 would have his or her name and address
listed on a campaign disclosure report, while a person who
made a contribution of $4,900 to the same committee would
not have his or her name and address listed on the report.
If it is the committee's desire to move this bill forward,
the committee may wish to consider an amendment to conform
the policy regarding disclosure of loans to the policy
regarding the disclosure of contributions.
8)Arguments in Opposition : Writing in opposition to this
measure, the Consumer Federation of California argues
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"�a]lthough this bill proceeds under the guise of privacy
protection, in reality it only serves to increase the opacity
of elections in California. Campaign spending is increasing
while the information about that spending that is available to
voters is decreasing. AB 1881 only further reduces campaign
transparency, a move which California's voters cannot afford."
Also in opposition, the FPPC writes that it "believes this
proposal would create less transparency and does not further
the purposes of the Political Reform Act. In addition, the
�FPPC] has concerns about any legislative measure that
requires additional �FPPC] resources to implement, unless the
measure includes an appropriation adequate to carry out its
provisions."
9)Related Legislation : AB 1146 (Norby), which is pending on the
Senate Inactive File, increases the threshold at which state
and local contributions and expenditures are required to be
disclosed on campaign reports from $100 to $200 and similarly
increases the limit on permissible anonymous contributions.
AB 1146 was approved by this committee on a 6-0 vote, and was
approved on the Assembly Floor by a 54-16 vote.
AB 2239 (Norby), which is also being heard in this committee
today, repeals all limits on contributions to candidates for
elective state office and requires most contributions and
expenditures of $100 or more to be publicly disclosed within
24 hours.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
Consumer Federation of California
Fair Political Practices Commission
Service Employees International Union
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094
AB 1881
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