BILL ANALYSIS �
SENATE COMMITTEE ON ELECTIONS
AND CONSTITUTIONAL AMENDMENTS
Senator Norma J. Torres, Chair
BILL NO: SB 1101 HEARING DATE: 4/22/14
AUTHOR: PADILLA ANALYSIS BY: Darren Chesin
AMENDED: 4/2/14
FISCAL: YES
SUBJECT
Political Reform Act: Legislature: campaign fundraising
DESCRIPTION
Existing law , pursuant to the Political Reform Act (PRA), limits
campaign contributions to candidates for elective state office
as follows:
To a candidate for elective state office other than a
candidate for statewide elective office, no person may
contribute more than $4,100 per election and no small
contributor committee may contribute more than $8,200 per
election;
To a candidate for elective statewide office other than a
candidate for Governor, no person may contribute more than
$6,800 per election and no small contributor committee may
contribute more than $13,600 per election;
To a candidate for Governor, no person or small contributor
committee may contribute more than $27,200 per election.
Existing law requires the Fair Political Practices Commission
(FPPC) to adjust these contribution limits biannually to reflect
any increase or decrease in the Consumer Price Index.
Existing law provides that a state lobbyist may not contribute
to a state officeholder's or candidate's committee if the
lobbyist is registered to lobby the agency of the elected
officer or the agency to which the candidate is seeking
election. The lobbyist also may not contribute to a local
committee controlled by any such state candidate.
Existing law requires an individual to file a statement of
intention to be a candidate for an elective office prior to
soliciting or receiving a campaign contribution or loan but does
not otherwise place restrictions on when candidates may solicit
or receive contributions.
This bill would provide that a person (including individuals and
organizations) shall not make to a Member of the Legislature,
and a Member of the Legislature shall not solicit or accept a
contribution during the final 100 days of session and for an
additional seven days afterward. Specifically, this bill would
impose a contribution "blackout" for the following periods:
In an odd-numbered year, on the date the Legislature adjourns
for a joint recess to reconvene in the second calendar year of
the biennium of the legislative session, during the 100-day
period preceding that date, and during the seven-day period
following that date.
In an even-numbered year, the period from May 23 to September
7, inclusive.
BACKGROUND
Blackout Periods in Other States : According to the National
Conference of State Legislatures (NCSL), 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. 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
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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.
Contribution Blackout Period and First Amendment Concerns : This
bill 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.
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 .
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
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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 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
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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 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.
While 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, this bill
nevertheless could be vulnerable to a constitutional challenge
based on other issues raised by one or more of these court
decisions.
COMMENTS
1.According to the Author : The California Legislature is the
most powerful state legislative body in the United States.
With a GDP approaching two trillion dollars, California is by
far the largest economy among our 50 states and the 8th
largest economy in the world. Because California is such an
important market force, the impact of decisions made in
California's State Capitol are often felt well beyond our
borders. Recognizing this, a multitude of interests actively
seek to influence the fate of thousands of pieces of
legislation that work their way through California's Capitol
each year.
Meanwhile, members of the Legislature regularly raise campaign
funds to support their re-election efforts. It is the
perceived confluence of campaign contributions and legislative
votes that erodes the public's faith in the Legislature's
ability to keep the two separate. This is of particular
concern toward the end of the legislative session as the fate
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of hundreds of bills is decided while fundraisers abound.
Many less populated states have sought to prevent the perception
of an overlap of votes and contributions by establishing bans
on contributions during the legislative session. Twenty-nine
states place restrictions on giving and accepting campaign
contributions during the legislative session. Thirteen of
these states have established fundraising blackout periods
prohibiting fundraising during legislative session. They
include; Alabama, Alaska, Florida, Georgia, Illinois, Indiana,
Louisiana, Maryland, New Mexico, Tennessee, Texas, Virginia,
and Washington. The longest of these fundraising blackout
periods is 4 months.
While some may argue that fundraising is protected by free
speech, the U.S. Supreme Court has held that the prevention
of, and even appearance of, corruption is an overriding goal
that can be achieved through "narrowly tailored" legislation
"to serve an overriding state interest." SB 1101 would
prohibit solicitation or acceptance of campaign contributions
by a member of the Legislature during the 100 days immediately
preceding the last day of the legislative session, the last
day of session, and seven days immediately following the last
day of the legislative session.
2.A Question of Equity . This bill applies only to sitting
members of the Legislature and not to other individuals who
are seeking election to the Legislature. Furthermore, this
bill makes no accommodation for members of the Legislature who
are appearing on the ballot as a candidate in a June primary
election or a special or local election that may be scheduled
during or soon after the blackout period. A sitting
legislator could be at a severe fundraising disadvantage in
relation to other candidates especially if a special election
is scheduled toward the end of the blackout period.
A recent and dramatic example of this would be the September 17,
2013 Special Primary Election to fill a vacancy in the 26th
State Senate District. Given the timing of that special
election then-Assemblymember Holly Mitchell would have been
prohibited from raising contributions for the entirety of the
campaign while her opponent(s) would have been free to
fundraise as usual. Under this bill, the blackout period for
legislators would have run from June 4, 2013 until September
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19, 2013. The Governor issued his proclamation calling for
the special election on July 2, 2013 and the election was held
on September 17, 2013 - all within the blackout period.
Should this bill be amended to somehow accommodate legislators
who will be appearing on the ballot either during or soon
after the blackout period?
3.Previous Legislation : AB 2622 (Smyth) of 2010, which failed
passage in the Assembly Elections and Redistricting Committee,
would have prohibited members of the Legislature from
accepting campaign contributions from June 16 until the Budget
Bill is passed by the Legislature.
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 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 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 the Assembly Elections and Redistricting
Committee.
POSITIONS
Sponsor: Author
Support: None received
Oppose: None received
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