HomeMy WebLinkAboutMINUTES - 12061988 - IO.3 TO: BOIARD OF SUPERVISORS I . 0. 3
FROM; INTERNAL OPERATIONS COMMITTEE C wtla
November 28 , 19 88 C )sta
DATE* COJ "J
SUBJECT; ELECTION CAMPAIGN ORDINANCE
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:
1 . Request County Counsel to provide our Committee on January
9, 1989 with an opinion on the following questions:
A. Can a third party or "uncontrolled" Committee which is
operating in this County and is supporting or opposing
candidates for county offices (Board of Supervisors and
elected County department heads) be required by the
Board of Supervisors to file a disclosure statement
with the County Clerk revealing the size and source of
their contributions and the names of those candidates
the Committee is either supporting or opposing?
B. Can a third party or "uncontrolled" Committee which is
operating in this County and is supporting or opposing
candidates for other than county offices be required by
the Board of Supervisors to file a disclosure statement
with the County Clerk revealing the size and source of
their contributions and the names of those candidates
the Committee is either supporting or opposing?
2 . Request County Counsel to propose possible language which
the Internal Operations Committee can consider on December
12, 1988 which would add a voluntary expenditure limit of
$150,000 per candidate per election to the current Fair
Campaign Pledge with the provision that if a candidate ' s
opponent exceeds the limit, regardless of whether the
opponent has agreed to the voluntary campaign limit, the
candidate would not be bound to observe the voluntary limit,
even if he or she had previously agreed to be so bound. In
addition, request County Counsel to propose language whereby
a candidate who had agreed to the voluntary campaign
expenditure limit would be released from that limit if any
third party (uncontrolled) committee enters the campaign and
raises money to oppose the candidate or support the
candidate ' s opponent.
3 . Request County Counsel to prepare an amendment to the
County' s campaign contribution limit of $500 to increase
that figure to $750.
CONTINUED ON ATTACHMENT; X YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR X RECOMMENDATION OF BOARD COMMITTEE
X APPROV OTHER
SIGNATURE s : Sunne W. Mc Beak Tom Torlakson
ACTION OF BOARD ON December 6, 1988 APPROVED AS RECOMMENDED X OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
X UNANIMOUS (ABSENT ) AND CORRECT COPY OF AN ACTION TARN
AYES; NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE ,SHOWN.
cc: County Administrator ATTESTED N.�t�rn G I98�
County Counsel
District Attorney PHIL BATCHELOR, CLERK OF THE BOARD OF
Elections Supervisor SUPERVISORS AND COUNTY ADMINISTRATOR
Elected Department Heads f
BY ,DEPUTY
M382/7-83
� f
Page 2
4 . Leave this matter on referral to the Internal Operations
Committee for further consideration at the Committee ' s
meeting on December 12, 1988 with the understanding that the
Committee will report this matter back to the Board of
Supervisors on December 20, 1988.
BACKGROUND-
On September 20, 1988, the Board of Supervisors approved a report
from our Committee on this subject, at which time the County
Administrator and County Counsel were asked to provide our
Committee and the rest of the Board Members with a variety of
pieces of information regarding the regulations which were being
developed by the Fair Political Practices Commission (FPPC) and
related matters.
On November 28, 1988, the County Administrator reported to our
Committee ( see attached memo) that the Consumer Price Index (CPI )
since 1983 has increased the current campaign contribution limit
of $500 per individual to $624. 12 in 1988 dollars. It was noted,
however, that the. CPI does not accurately reflect the major
expense of campaigns, which is postage. We have, therefore,
proposed that the $500 limit be split in two with one-half being
inflated by the CPI and the other half being inflated by the
increased cost of postage, which has grown by nearly 100% since
1983 . As can be seen below, this results in a contribution limit
of $862 . We are proposing, instead, a more modest increase to
$750 per individual.
$250 + CPI ( $112. 06) _ $362. 06
$250 X 2 (Postage) _ $500. 00
Total $862. 06
County Counsel has supplied each Board Member with several sets
of proposed and final regulations being considered or adopted by
the FPPC.
County Counsel also supplied our Committee on November 28 with
the three attached memoranda. The first of these memoranda
essentially advises our Committee that the Board of Supervisors
cannot include on the ballot, or in any voters pamphlet, any
indication of whether or not a candidate has signed the Fair
Campaign Pledge because of the possibility that doing so would be
considered a violation of the candidate' s constitutional
guarantee of free speech and that, in addition, the Elections
Code is very specific in terms of what can and cannot be included
on the ballot and in the voters pamphlet, leading to the
conclusion that the Legislature intended to exclude any items not
enumerated in the Code. County Counsel also noted the
prohibition on a public body, such as the Board of Supervisors,
from expending public funds to support or oppose a candidate or
position on a ballot proposition. Indications by the Board of
Supervisors that a candidate did or did not sign the Fair
Campaign Pledge can be interpreted as "taking sides" in a way
that is prohibited.
County Counsel has also supplied our Committee with the attached
memorandum which comments on the extent to which the County' s
Election Campaign Ordinance appears to be preempted by
Proposition 73, although County Counsel commented that the FPPC
regulations are still somewhat in a state of flux and may change
in some respects in the near future. County Counsel has also
supplied our Committee with the attached memorandum which lists
the regulations which have been adopted by or are before the
FPPC.
Page 3
Because of the complexity of this subject and the fact that the
State regulations interpreting Proposition 73 are still being
developed, we have asked County Counsel to provide our Committee
further information at our next meeting. Our Committee is
inclined to recommend the inclusion in the Fair Campaign Pledge
of a voluntary campaign limit statement of $150, 000 per election
( $300,000 in the case of both a primary and general election
campaign) . We are concerned, however, about the possibility that
outside groups which may not be controlled by a candidate may
enter the County and raise funds to campaign for or against the
candidate or his or her opponent. In this case, as well as the
case where a candidate signs the voluntary expenditure limit and
then finds that his or her opponent has violated the limit, we
believe it is important that a candidate be released from the
voluntary expenditure limit.
1 7
r
OFFICE OF COUNTY ADMINISTRATOR
CONTRA COSTA COUNTY
Administration Building
Martinez, California
INTERNAL OPERATIONS COMMITTEE September 30 , 1988
To: Supervisor Sunne' W. McPeak Date:
Supervisor Tom Torlakson
From: Claude L. Van Master, ! ~ Subject: INFLATION-ADJUSTED CAMPAIGN
Assistant Administrat CONTRIBUTION LIMITS
You requested information on what the County' s current campaign
contribution limit of $500 per election cycle would be if it had been
adjusted for the changes in the consumer Price Index since the $500
figure was agreed to in 1983 .
The Bay Area CPI figure which is used by the Personnel Department for
all of our labor negotiations is as follows:
CALENDAR YEAR (January 1 - December 31) Change in CPI
1983 + 0 . 0
1984 + 5 . 60
1985 + 4. 0%
1986 + 2 . 70
1987 + 5 . 50
1988 (January 1 - June 30) + 4 . 90*
*Annualized
Applying these figures to the $500 contribution limit would,
therefore, result in the following:
CONTRIBUTION LIMIT CPI FOR CONTRIBUTION
YEAR ON JANUARY 1 THE YEAR LIMIT ON DECEMBER 31
1983 $500. 00 0. 0% $500 . 00
1984 $500. 00 5. 60 $528 . 00
1985 $528. 00 4. 0% $549 . 12
1986 $549 . 12 2.70 $563 . 95
1987 $563 . 95 5. 50 $594 . 97
1988 $594. 97 4 . 90 $624. 12**
** Assuming CPI remains at $4 . 9% for the balance of the year
• l I
Contribution Limits -2- September 30, 1988
The conclusion we would reach, therefore, is that as of December 31,
1988 a contribution limit of $.624 . 12 is equivalent to the $500 . 00
limit which was imposed in 1983 . This matter will be back before your
Committee on November 28, 1988. Please let me know if there is
anything else you want done with these figures in the meantime.
CLVM:cm
cc: Supervisors Schroder, Powers & Fanden
Vic Westman, County Counsel
Bob Delevati, Elections Supervisor
Bill Hamilton, Chief of Employee Relations
♦ j'
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: November 28, 1988
To: Internal Operations Committee of the Board of Supervisors
From: Victor J. Westman, County Counsel K-
By: Kevin T. Kerr, Deputy County Counsel
Re: Notification. to Voters as to Whether or -Not Candidates=For County
Elective Office Have Signed the County Fair Campaign Pledge
Summary: It is the view of this office that the County may not
require ballots, voter pamphlets, or other materials provided to
voters, to indicate whether or not candidates for elective County
office have signed the County Fair Campaign-Pledge. Such
requirements would violate the candidates'. constitutional guarantees
of freedom of speech. The Elections Code also does not authorize,
nor appear to permit, a statement on ballots, voter pamphlets, or
other materials provided to voters, indicating whether or not
candidates for elective County office have signed a County Fair
Campaign Pledge. In addition, the County Board of Supervisors
probably may not otherwise advertise whether or not such candidates
have signed the Pledge, in that the government would then be viewed
as impermissibly taking sides in an election contest.
Question No. 1: May the County require that ballots, voter
pamphlets, or other materials provided to voters,. contain a statement
indicating whether or not candidates for elective County office have
signed the County Fair Campaign Pledge? .
Answer No. 1 • No.
Discussion No. 1 :
1 . The California Attorney General Has Considered This
Question in the Context of the State's Code of Fair
Campaign Practices .
The California Attorney General has authored a published opinion
which we believe is applicable to the question presented here. In 69
Cal .Ops .Atty.Gen 278 (Dec. 1986) , the Attorney General concluded .that
"A state law or county ordinance which requires
ballots to indicate whether the. candidates for
elective county office have sgned_ or refused--to- sign
a .+
Internal Operations Committee -2- November 28, 1988
the Code of Fair Campaign Practices provided for in
sections 12500 et seq. of the Elections Code would
violate the constitutional guarantee of -freedom of
speech. "
In our view, the Attorney General's analysis supports our conclusion
that the County may not require ballots, voters pamphlets, or other
materials provided to voters, to indicate whether or not candidates
for elective County office have signed the County Fair Campaign
Pledge, on -the ground that such requirements would violate the
candidates' free speech guarantees under-the- First Amendment. of. the
U.-S. Constitution and Article I, §2 of the California Constitution.
The Attorney General's opinion concerned the State' s Code of Fair
Campaign Practices, set forth in Elections Code § 12520 . (69
Cal 'Ops .Atty Gen. 278, 279 ( 1986 ) . ) All candidates for public office
are encouraged by the Legislature to. subscribe to the code.
(Elections Code §12520 . ) However, ".[i]n no event shall a candidate
for public office be required to subscribe to or endorse the code. "
(Elections Code § 12525. ) The content of the Code closely resembles
the content of the County Fair Campaign Pledge. (County Ordinance, §
530-2 . 602 ) .
In reaching his conclusion, the Attorney General extensively
discussed case law concerning political speech under the First
Amendment of the U.S. Constitution.
The Attorney General noted that the right to engage in political
speech reflects "our 'profound national commitment to the principle
that debate on public issues should be uninhibited, robust and wide
open. "' (69 Cal .Ops .Atty.Gen. 278, 280 (citation omitted) . ) " ' [T]he
constitutional guarantee [of free speech] has its fullest and most
urgent application precisely to the conduct of campaign for public
office. . . . " (Id. at 281 (citation omitted) . ) Consequently, in the
area of political speech, " 'the remedy to be applied is more speech,
not enforced silence. " ( Id. (citation omitted) . ) " 'The State' s
fear that voters might make an ill-advised choice does not provide
the State with a compelling justification of limiting speech. " (Id.-
(citation
Id:(citation omitted) . )
The Attorney General further noted that erroneous statements are
unavoidable in free debate. (69 Cal.Ops.Atty.Gen. 278, 281 ) But
" ' [t]he chilling effect of . . . absolute
accountability for factual misstatements in the
course of political debate is incompatible with the
atmosphere of free discussion contemplated by the
First Amendment in the context of political
campaigns . [citations omitted]—.... . . We depend for
. . . correction not on the conscience of judges and
juries but on the competition. .of. other ideas . '
Internal Operations Committee -3- November 28, 1988
[Citation omitted. ] In a political campaign, a
candidate's factual blunder is unlikely to escape the
notice of, and correction by, the erring candidate' s
political opponents . The preferred remedy of more
speech, not enforced silence, ' . . . thus has special
force. . . . " ( Id. (citation omitted) . )
Accordingly, in the area of political speech, the only
unprotected speech is a falsehood uttered or made with actual malice
. (that is, with a knowledge that the statement is false. or a reckless
disregard as to whether it is true or not) . (69 Cal .Ops .Atty.Gen.
w 278, 281-283 . ) Thus, . " 'prior administrative restraint of
distinctively political messages on the basis of their deceptiveness
is unheard of and deservedly so. "' ( Id. at 283 (citation omitted) . )
The Attorney General concluded his opinion by stating that
" [W]e have little hesitancy in concluding that such a
law or ordinance would violate the constitutional
guarantees of freedom of speech. A candidate who did
-not subscribe to the code could be 'branded' as not
agreeing to conduct a ' fair campaign' despite the
fact that all campaign speech other than outright
falsehoods uttered with actual malice is protected
speech under the First Amendment. Accordingly, there
would be a coercive effect to require the candidate
to 'voluntarily' sign the code. Yet in signing the
code, the candidate would agree to conduct his
campaign within the limits of the code •and thus
restrict his freedom of speech well beyond the area
of unprotected speech - that is, the deliberate
falsehood.
"For example, if the new procedure were applied to
the California statute as it now exists, the
candidate in signing the code would agree not to
appeal to the 'negative prejudice' of voters 'based
on race, sex, religion, national origin, physical
health status, or age. ' The candidate then could not
speak to a group of young college students and urge
them not to vote for his opponent based upon his
opponent's advanced age or declining health. Nor
could a candidate speak to a group of voters in a
majority area and indicate to them that he would
better represent their interests. because of his
opponent' s racial minority origins.
"Yet, these are clearly matters which fall within the
- area of protected speech. " —(-69 Cal-.Ops .Atty.Gen.
278, 286-287 . )
L l
Internal Operations Committee -4- November 28, 1988
2 . The California Attorney General' s Reasoning
and Conclusion as to the Code of Fair Campaign
Practices Are Applicable to the County' s Fair
Campaign Pledge.
In our view, a court would likely follow the California Attorney
General's conclusion in 69 Cal .Ops .Atty.Gen. 278 (Dec. 1986 ) in the
event of a legal challenge to a county requirement that voters be
notified whether or not candidates for elective County office have
endorsed the County Fair Campaign. Pledge. A court would probably
hold that such- a County requirement is• a violation of the .
constitutional guarantees of freedom of speech.
3 . The Elections Code Does Not Authorize or Permit
Statements in Voting Materials As to Whether or
Not Candidates Have Signed the County Fair
Campaign Pledge.
In addition to the concerns regarding freedom of speech,
discussed above, the detailed requirements and restrictions found in.
the Elections Code, as to what shall and may be included in ballots,
voters pamphlets, ' and other materials to be provided to voters, lead
us to conclude that the County cannot place statements in voting
materials as to whether or not candidates for elective County office
have endorsed the County Fair Campaign Pledge.
Elections Code SS 10200 et seq. set forth the specific
requirements for the content of all ballots in all elections (see §
10201 ) : Section 10200, in pertinent part, states that " [t]he
nonpartisan ballot shall contain only the names of all candidates for
nonpartisan office and measures to be voted for at the primary
election. " (Emphasis added. ) Section 10211(.a) provides that "only
one" of four designations may appear under a candidate' s name on a
ballot. Section 10220 sets forth the format for the instructions to
voters . Lastly, while S 10229 states that a county clerk may make
certain specified changes to the format of a ballot, a statement of
whether or not the County Fair Campaign Pledge has been signed is not
among the enumerated changes permitted under S 10229 . Accordingly,
the Elections Code does not authorize, nor appear to permit, the
inclusion of such statements in ballots .
As to the inclusion of such statements in voters pamphlets, the
Elections Code is specific about what may be included in voters
pamphlets . Section 10012 permits the inclusion of candidate
statements in voters pamphlets . In addition, insofar as candidates
may pay the prorata costs of printing and mailing the voters
pamphlets containing their candidate statements, it would be more
difficult to determine the prorata shares if the County included its
_own statements in the pamphlet.. __
{ f
Internal Operations Committee -5- November 28, 1988
As to the inclusion of statements concerning the Fair Campaign
Pledge in other materials provided to voters, Elections Code § 10010
provides that only "official matter" shall be sent with the sample
ballot "as provided by law. " We are not aware of any law which
provides for furnishing voters with a statement of whether or not a
candidate has endorsed a local code of ethics or a promise to conduct
a fair campaign. Several other types of statements and information
have been designated as "official matter" under § 10010 . (See, for
e.g. , Elections Code § 3781 (county auditor's . fiscal impact
statement) ; §3783 (county counsel's impartial analysis of county
measures, and arguments for or against county measures) ; and Public
Utilities Code § 180203(c) (voter information handbooks regarding
local transportation authorities special elections) ; see also County
Counsel Opinion 82-54 (June 22, 1982) . )
Question No. 2 : May the County. Board of Supervisors otherwise
advertise whether or not candidates for elective County office have
endorsed the County Fair Campaign Pledge?
Answer No. 2: Probably not.
Discussion No. 2 : The California Supreme Court has recognized
" [t]he importance of governmental impartiality in electoral
matters . . . . " (Stanson v. Mott ( 1976 ) 17 Cal. 3d 206, 219; see also
County Counsel Opinions 80-98, 84-103, 86-121, and 88-98 . ) "A
fundamental precept of this nation's democratic electoral process is
that the government may not 'take sides' in election contests or
bestow an unfair advantage on one of several competing factions. "
(Id. at 217 . )
The California .Supreme Court has further. noted that
"Problems may arise, of. course, in attempting to-
distinguish improper 'campaign' expenditures from
proper 'informational' activities . With respect to
some activities, the distinction is rather clear . . . .
"Frequently, however, the line between unauthorized
campaign expenditures and authorized informational
activities is not so clear. . . . In such cases, the
determination of the propriety or impropriety of the
expenditures depends. upon a careful consideration of
such factors as the style, tenor and timing of the
publication; no hard and fast rule governs every
case. " (Stanson v. Mott, supra, 17 Cal. 3d, 206, 221-
222 . )
A motion, resolution, announcement, or advertisement by the Board
of Supervisors that a candidate for elective County office did or did
not sign the County Fair Campaign Pledge would probably not be viewed
by a court as "informational" activity-.-- A statement that such a
Internal Operations Committee -6- November 28, 1988
candidate did not endorse .the Pledge would most likely have a
negative impact on the candidate in his or her election bid, because
the statement implies that the candidate will not conduct a fair
campaign. Such a statement may thus be viewed as impermissibly
taking sides in an electoral contest.
Conclusion: Based on the above, it is our view that the fact
that a candidate for elective County office has or has not signed the
County Fair Campaign Pledge cannot be stated on a ballot, voter' s
pamphlet, or other materials provided to voters . A court would
probably view the inclusion of such a statement as a violation of a
candidate' s.-constitutional guarantees of free speech.. Moreover, the
Elections Code does not authorize, nor appear to permit, the
inclusion of such a statement in.'voter materials . In addition, the
County Board of Supervisors probably may not otherwise advertise
whether or not such candidates have signed the Pledge, in that the
government would then be viewed as impermissibly taking sides in an
election contest.
KTK:df
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COMP
MARTINEZ, CALIFORNIA
Date: November 23, 1988
To: Internal Operations Committee of the Board of Supervisors
From: Victor J. Westman, County Counsel
By: Arthur W. Walenta, Assistant County Counsel
Re: Preemption Of The Election Campaign Ordinance
County Counsel's September 16, 1988 memorandum to the County
Administrator commented generally on the preemption of County's
Election Campaign Ordinance by the provisions of Proposition 73.
Since that time, the Fair Political Practices Commission has
issued a legal . opinion dated .October 12, 198.8, discussing the
effect of Proposition 73 on local ordinances and providing
general guidelines . A copy of that opinion is attached. In our
opinion, the views expressed in the FPPC's October 12, 1988
opinion are generally consistent with .those contained in County
Counsel's September 6, 1988 memorandum.
Election Campaign Ordinance provisions preempted effective
January 1 , 1989 .
1 . The basic County limitation on individual campaign
contributions of- $500 per election cycle,- is valid under.
Proposition 73 as a more restrictive limit permitted under
Government Code section 85101(a) . But to. the extent that the
County ordinance would permit more than $1000 in contributions if
more than two election cycles occurred within a single fiscal
year (special election) the County ordinance is preempted.
(S 530-2 .402(a) . )
2. The County provision permitting up to ten thousand
dollars in in-kind contributions of office space and equipment by
an individual in an election cycle is preempted, but the
limitation on total contributions of office space and equipment
to ten thousand dollars in an election cycle is valid as a more
restrictive limit permitted by Government Code section 85101 (a) .
(S 530-2 .402(b) . )
3 . The County provision permitting political action
committee contributions up to fifteen thousand dollars per
election cycle is preempted to the extent that the provision
permits committee contributions which exceed $2500 or $5000 in a
single fiscal year. Otherwise it is valid as a more restrictive
limit permitted under Government Code section 85101(a) . The
limitation on total political action committee contributions to
Internal Operations Committee -2- November 23, 1988 _ . . ._
fifteen thousand dollars per election cycle is valid as a more
restrictive limit permitted by Government Code section 85101(a) .
(S 530-2 .404 . )
4 . The County provision permitting candidates and campaign
treasurers to avoid penalties by returning excess contributions
within 30 days is preempted. (S 530-2 .405 . )
5 . The County provision for exemptions from the limitations
on contributions is preempted. See Government Code section
82015 . (S 53072 . 214 . )
6 . -The Countyprohibition.-- against accepting campaign
contributions from governmental entitles is preempted by
Government Code section 85202(a) . 530-2.406 . )
AWW:da
Attachment
l
State of California \.
Memorandum
To Chairman Larson, Commissioners Fenimore, Date October 12, 1988
Lee, Montgomery and Roden
County Co►,n; I
140V 17 1988
From Fair Political Practices Commission Martinez, CA 94553
Lilly Spitz
Subject: The Effect of Proposition 73 on Local Ordinances
Government Code Section 851001/ as set forth in Proposition
73 provides:
(a) Nothing-. in this chapter .shall affect the
validity of a campaign contribution limitation in
effect on the operative date of this -chapter which was
enacted by a local governmental agency and imposes
lower contribution limitations.
(b) Nothing in this chapter shall prohibit a
local governmental agency from imposing lower campaign
contribution limitations for candidates for elective
office in its jurisdiction.
(Emphasis added..)
QUESTION
How should local jurisdictions apply the language of
Proposition 73 to the local campaign contribution limitation
laws currently in place or contemplated?
CONCLUSION
The rules of statutory construction require that statutes
relating to the same subject should be read in harmony wherever
possible. To do so, local laws must first be examined on a
provision-by-provision basis to. ensure that the provisions do
not conflict with the state law. Where provisions of local law
do conflict with the state law, the appropriate provisions of
state law supersede.
l/ All statutory references are to the Government Code
unless otherwise indicated.
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12 , 1988
Page 2
However, because of the specific authority given by
Proposition 73 to local jurisdictions to impose lower
contribution limitations, every effort should be made to
preserve the purpose and intent of local charters and
ordinances within the parameters set forth in Proposition 73 .
EXAMPLE:
The City of Los Angeles .Charter Section 312 sets-
limitations on campaign contributions for election to city
council and all city-wide offices. The limitations are
calculated on a per election :cycle. The city's primary and
run-off elections are held in the same fiscal year. This is an
important factor because the Proposition 73 limitations are
based on a fiscal year cycle. Thus. the cumulative effect of
the contribution limits in a single .fiscal year must be
'calculated to contrast. them with the provisions of Proposition
73 .
Under the Los Angeles City Charter, Most contributors to
city council and city-wide candidates may contribute up to $500
per election per candidate. Since this is a more restrictive
.limitation than the $1,000 per fiscal year limit in Proposition
73 (Section 85301) , the local charter provisions limiting
contributions to $500 per election are valid under Proposition
73.
In Los Angeles, persons contributing to candidates for
city-wide office and their controlled committees may contribute
up to $1,000 per election. When the contributor is a political'
committee, a broad based political committee or a political
party, this $1,000 per election limitation is lower than the
$2,500 and $5,000 per fiscal year limitations of Proposition
73 . (Section 85303. ) We conclude, therefore, that the
limitations of subdivision 6 as applied to political
committees; broad-based political committees and political
parties are valid.
However, when the contributor is an individual, the Los
Angeles limitation allows up to $2,000 in a single fiscal year
while Proposition 73 allows only $1,000. Therefore,
individuals who contribute to candidates for city-wide offices
are limited to the $1 000 er fiscal year limitation Im osed in
Proposition 73.
The same analysis should be applied to the various other
provisions of the local ordinance or charter. Where the
provisions of a local law are complementary to ProposiF on 73 ,
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 3
they should stand. where they conflict with Proposition 73,
the limitati6ns of P�roposition 73 supersede.
DISCUSSION
The contribution limitations mandated by Proposition 73
are:1
1. Contributions from -anyperson to a bandidat6 or to the
candidate's campaign committee are limited to $1, 000 per fiscal
year..2/ (Section 85301. ) Contributions from a ,person to a
political committee or political party are limited to $2,500
per fiscal year. (Section 85302. )
2. Political committees are limited to $2,500 per fiscal,
year to 'a candidate or the candidate's campaign committee.
(Section 85303 (a) . )
3 : Broad based political committees and political parties
are limited to $5,000 per fiscal year to a candidate or the
candidate's campaign committee. (Section 85303 (b) . )
Rules of Statutory Construction How to Determine Whether 'a
T
Local Ordinance is Enforceable Under Proposition 73.
A. The Local Ordinance Cannot Conflict with State Law.
Section 7 of Article XI of the California constitution
states that cities and counties may make and enforce ordinances
not in conflict with general laws. All cities and counties,
including charter cities and counties, are subject to and
controlled by provisions of general law. Only where matters
regulated by local charter are "municipal affairs" or a matter
for "home rule" will the local law supersede state law. (City
of Los Angeles v. State of California (1982) 138 Cal. App. 3d
2/ The limitations described in the text apply to primary
and general elections. Proposition 73 also provides specific
contribution limitations during special elections and special
runoff elections. For purposes of this analysis, however, we
will focus on the main provisions of the measure. The analysis
provided in this memorandum may be applied to the special
election provisions of Proposition 73 as well.
V Section 85102 (a) states that "Fiscal year" means July 1
through June 30.
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12 , 1988
Page 4
526; San Diego Union v. City Council (1983) 146 Cal. App. 3d
947; Younger v. Board of Supervisors ofSanDiego County (1979)
93 Cal. App. 3d ,864. )
Sections 4 (a) .and_ (c) of Article XI provide that county
charters shall provide for a governing body of five or more
elected members, and for the election or .appointment of other
county officers.
Section 5 (b) of Article XI of the California Constitution
specifically empowers charter cities to provide for "the
conduct of city elections" in their charters. (Cal. Const. ,
Art. XI, Sec. 5(b) (3) . ) It also grants "plenary authority" for
. a. city charter to provide "the manner in which, -the method by
' which, the times at which,. and the terms. for which -the several
muni appointed. . , ."
municipal officers . . *- shall be elected or
(Cal. Const. , Art. XI, Sec.. 5(b) (4) .)
The courts have indicated that the concept of "home rule"
gives counties "certain local control over the means of
carrying out governmental functions." (Younger v. Board of
'Supervisors, supra, at page 869 (emphasis added) , citing Estate
of Miller (1936) 5 Cal. 2d 588, 591.) The inclusion in a
county charter of a provision limiting the number of terms a
county elected .official may serve has been held invalid because
it reached to the qualification for a .cand.idacy, which was
beyond the limited powers authorized by Section 4 of Article
XI. (Younger v. Board of Supervisors, supra. ) Thus, we
conclude that the "home rule" concept does not give 'a charter
county the authority to impose campaign contribution
limitations in conflict with state law.
Based on Section 5 of Article XI, the courts have
recognized that "the mechanics of election procedures" in a
..chartered city- are municipal affairs. (Canaan v.-- Abdelftour
(1985) 40 Cal. 3d 7034, 710, citing Gould v. Grubb (1975) 14
Cal. 3d 662, 669.) Consequently, various city charter
provisions concerning conduct of municipal elections have been
held to prevail over general law. * Specific examples of city
election procedures upheld by the courts include form and
content of ballots (Rees v. Layton (1970) 6 Cal. App . 3d 815;
Mackey v. Thiel (1968) 262 Cal. App. 2d 362) , procedures
concerning recall of municipal officers (Muehleisen v. Forward
(1935) 4 Cal , 2d 17) , and procedures for qualification of a
referendum or other measure for placement on the ballot
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 5
(Redwood City v. Moore (1965) 231 Cal. App. 2d 563; Lawing v.
Faull (1964) 227 Cal. App. 2d 23) AJ
No California court has considered whether campaign
contribution limitations in City or county charters concern the
conduct of* city or county elections and thus are a municipal
affair or subject to home rule. However, we believe that
campaign contribution limitations concern the conduct of
election campaigns rather than, the conduct of elections, and
thus~ are fundamentally diffekent from the types of election
procedure matters considered to be within the exclusive
constitutional authority of a charter city or county.
The increased cost of election campaigns is a phenomenon
experienced at all levels -of government.- Measures--taken to
de-escalate this trend, and other matters concerning the. .
integrity of elected officials and the purity of the election
process, are matters of statewide concern:
Since contribution limitations do not fall within the
exclusive control of cities and counties, where a conflict
exists between state laws and local laws concerning campaign
contribution limitations, the state law will prevail. A
conflict exists between a state law and A local charter
provision or 'ordinance where the local law duplicates,
contradicts or enters an area fully occupied by state law.
(Cohen v. Board� of Supervisors- (1985) 40-. Cal. 3d 277 ; In re
Hubbard (1964) 62 Cal. 2d 119. )
In June 1970, Article XI of the California Constitution
was revised and reenacted. Section 5(b) (3) , which authorizes
city charters to provide for the "conduct of city elections"
replaced portions of former Section 8 1/2. Former Section 8
1/2 granted city charters power to provide for "the manner in
which and the times at which any municipal election shall be
held." Arguably, the "conduct of city elections" in current
Section 5(b) (3) covers a broader range of subjects than was
covered under the previous language of Section 8 1/2. However,
Section 13 of Article XI indicates this is not the case.
Section 13 provides that the 1970 revisions to Article XI
"relating to matters affecting the distribution of powers
between the Legislature and cities and counties, including
matters affecting supersession, shall be construed as a
restatement of all related provisions of the Constitution in
effect immediately prior to the effective date of this
amendment, and as making no substantive change."
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 6
Proposition 73 specifically recognizes local jurisdictions '
interest and participation in limiting campaign contributions
in their local elections. The language of Section 85101 could
even be seen as encouraging such involvement, so long as the
local jurisdictions impose lower contribution limitations.
Where a state statute contains language indicating that
there is no intent on the part of the state to assert exclusive
jurisdiction, local laws are appropriate for supplementary
regulation. (Pipoly v. Benson (1942) 20 Cal. 2d 366; Galvan v.
Superior Court (1969) 70 Cal. 2d 851; People ex rel. Deukmejian
v. County of Mendocino (1984) 151 Cal. App. 3d 1076. ) Thus,
the contribution. limitations of a local jurisdiction will stand
if they do not duplicate or contradict Proposition 73, and if
they impose lower contribution limitations on candidates for
elective office in the local jurisdiction.
B. Statutes Involving Same Subject Should be Harmonized,
Wherever Possible.
It is a basic rule of statutory construction that wherever
possible, statutes relating to the same subject or having the
same purpose should be harmonized. Conflicting laws cannot be
rewritten to save them from invalidation. (Patterson v. County
of Tehama (1987) 190 Cal. App. 3d. 1298; Metromedia, Inc. v.
City. of San Diego (.1982)_ 32 Cal. 3d 180. ) However, statutes
which address the same subject or concern, although in apparent
conflict, should be construed to be in harmony with each other,
so far as reasonably possible. (Louisiana Pacific Corp. v.
Humboldt Bay Mun. Water Dist. (1982) 137 Cal. App. 3d 152 ;
Natural Resources Defense Council, Inc. v. Arcata Nat.. Corp.
(1976) 59 Cal. App. 3d 959. )
Therefore, when analyzing whether local ordinances which
impose contribution limitations are in accord with Proposition
73, one must first look to the plain meaning of the language
contained in both laws (Patterson v. County of Tehama, supra) ,
and then construe the statutes in such a way as to provide for
a reasonable, fair and harmonious result in furtherance of
their manifest purposes. (Dickey v. Raisin Proration Zone No 1
(1944) 24 Cal. 2d 796. ) Moreover, the -literal meaning of the
words of a statute "must give way to avoid harsh results and
mischievous or absurd consequences. " (County of San Diego v.
Muniz (1978) 22 Cal. 3d 29, 36. )
Section 85100 of Proposition 73 protects and specifically
authorizes local campaign contribution limitations which are
lower than those set forth in Proposition 73. Because of the
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 7
specific authority given to local jurisdictions to impose
stricter campaign contribution limitations, in our
implementation of Proposition 73 we must make every effort to
preserve the provisions of local ordinances while at the same
time working within the parameters of state law.
C. The Rule of Severability Allows Implementation of Valid
Provisions of a Local Ordinance, While Voiding the
Provisions in Conflict with State Law.
If parts of a local law are in conflict with the state law,
it does not necessarily follow that the entire local ordinance
must be eliminated. When the offending language can be
mechanically separated, the nonconflicting provisions may be
saved. (In re Blaney (1'947) 30 Cal. 2-d 643; see also Santa
,. Barbara Sch.. Dlst. v. Superior Court (1975) 13 Cal. 3d 315;
People's Advocate Inc. v. Superior Court (1986) 181 Cal. App.
3d 316; Patterson v. County of Tehama, supra, at pp.
1320-1321. )
Where it is possible to eliminate language in local
contribution limitation ordinances which duplicates or
contradicts the language in Proposition 73, and still have a
statute which is grammatically correct, efforts should be made
.to do so. But a grammatically correct law will not survive if
it is incapable of independent application, or where the
remaining provisions of the ordinance no longer accomplish the -
original intent of the enacting body. (People's Advocate, Inc.
v. Superior Court, supra. )
Consequently, local contribution limitation ordinances
containing provisions which impose lower contribution
limitations, even though they include provisions which allow
contributions equal to, or higher than, the limitations
mandated in Proposition .73, may be saved if the offending
provisions can be edited from- the local law without
undercutting the purposes of the local ordinance, nor impeding
the independent application of the remaining provisions.
Application of Proposition 73 to Local Ordinances
The. Commission is aware of 54 local jurisdictions which
have local campaign ordinances in effect. Of the 45 cities,
eight counties and one special district, 40 have contribution
limitations of varying degrees.
For example, the City of Adelanto limits contributions to
$.15 per registered voter by a single source in a single
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 8
election.. With approximately 1, 250 registered voters in the
city, a contributor is limited to $187.50 to a single candidate
in a single election. The City of Berkeley limits -
contributions from persons to candidates to $250 per election.
Based on the information we have received concerning these
two local. ordinances, we would conclude, assuming that the..
information is accurate, that the contribution limitations in
,. these ordinances would remain in effect. In both instances the
limitation on contributions is lower than the lowest
per-fiscal-year limitation mandated in .Proposition 73.
Not all local ordinances are so- easily contrasted with
Proposition 73, however..
Example: . Cit of Los Angeles - Charter -Section 31-2
Limitations on Campaign Contributions in City Elections.
The City of Los Angeles adopted an amendment to the city
charter which imposes campaign contribution limitations in city
elections.V The contribution limitations, set forth in
Section 312 of the city charter (copy attached) , are:
1. Contributions, including loans, from any person,V
other than the candidate, to a candidate for city council shall
not exceed $500 persingle- election. . (Subdivisions .5 and 10. )
2. Contributions, including loans,- from any person, other
than the candidate, to a candidate or any controlled committee
V For the sake of simplicity, . this analysis will focus
specifically on the contribution limitations in the Los Angeles
charter. We will not address possible, conflicts regarding
reporting requirements, regulation of controlled committees, -
petty cash funds, or other provisions of the ordinance. The
rules of statutory construction outlined herein are applicable
to these various provisions as well. Should the Commissioners
determine that such an analysis of other provisions is needed,
we will prepare such an analysis for a future Commission
meeting.
V The Los Angeles charter incorporates the definitions
set forth in the Political Reform Act (the "Act") for
interpretation of its provisions. "Person" is defined in the
Act to mean an individual, proprietorship, firm, partnership,
joint venture, syndicate, business trust, company, corporation,
association, committee, and any other organization or group of
persons acting in concert. (Section 82047. )
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 9
of any candidate for Mayor, City Attorney or Controller shall
not exceed $1, 000 per single election. (Subdivision 6 and 10. )
3. Contributions from any person, other than the
candidate, to a committee other than a controlled committee in
support of or opposition to such candidate for Mayor, City
Attorney or Controller shall not exceed $500 per single
election. (Subdivision 7. )
-4 . All contributors must comply with an aggregate
limitation on contributions in a single election, based on a
formula which involves the number of offices appearing on the
ballot. (Subdivision 8. )
5. Transfers -of contributions to other candidates; or in
support .of or opposition to any city ballot measure are
prohibited. (.Subdivision 110
6. A candidate may contribute no more than $30, 000 in
personal funds to his or her own campaign unless he or she
meets specific conditions relative to notice and deposit of
funds. If the limit is exceeded, each opponent of such
candidate is permitted to solicit and receive contributions in
excess of the limitations imposed by Subdivisions 5 and 6, up
to the amount_ of personal funds contributed by such candidate.
(Subdivision 12. )
Comparison
In the City of Los Angeles the. primary nominating election
is held in April, and the general municipal election is held in
June. Consequently, both elections are held within the same
fiscal year.
The contribution limitations imposed under the ordinance
apply separately to each of these elections. Thus, the total
contribution limitation for city council elections is $1, 000
.per person per fiscal year. The total contribution limitation
for the offices .of Mayor, City Attorney and Controller is
$2,000 per person per fiscal year for contributions to the
candidate or his or her controlled committee, and $1, 000 per
person per fiscal year for contributions to other committees.
Comparing these basic provisions to the requirements of
Proposition 73, we conclude the following:
A. Subdivision 5, which applies to city council elections,
and Subdivision 7, which applies to election of other city
. officials,mat contributions to $500 per contributor per
election. If a candidate is forced into a run-off election, a
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12 , 1988
Page 10
second limitation of $500 per contributor goes into effect.
Keeping in mind that both the primary and run-off elections
take place in the same fiscal year, still the maximum
contribution from a single contributor in a fiscal year is
$1, 000.
Proposition 73 's lowest limitation is. $1, 000 per person per
_ fiscal year. Thus, the provisions of Subdivision 5 and
Subdivision. 7 provide a stricter regulation of contributions by
limiting all contributors to $500 in a given election. Both
these provisions are valid and should remain in effect.
B. Subdivision 6 limits contributions to candidates or the
controlled committees of candidates for the office of Mayor,
.City Attorney' or Controller to $1,"000 per election.
Subdivision 6 provides:
No person other than a candidate shall make, and
no person or candidate shall solicit or accept,
any contribution which will cause the total
amount contributed by such person with respect to
a single election for Mayor, City Attorney or
Controller, in support of or opposition to a
candidate for such office, including
contributions to such candidate and any
controlled committees of any candidate, to exceed
$1, 000.
(Emphasis added. )
Both the general and run-off elections in the City of Los
Angeles are defined as "single elections". Since they fall
within the same fiscal year, if a candidate for city-wide
office is forced into a run-off election, the local limitation
on campaign contributions is $2 , 000 in a single fiscal year.
Fiscal Year Calendar vs. L. A. Election Year Calendar
F July 1
I * *
S
C * *** April --- Primary election
A Y
L E * *** June --- Run-off election
A
R June 30
On its face, Subdivision 6 conflicts with the $1, 000 per
fiscal year limitation for individuals mandated by Proposition
73 . Still, in an effort to save the local law and to put into
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12 , 1988
Page 11
effect both statutes, if possible, we must harmonize the two if
this can be achieved within the limits of rules of statutory
construction. (Louisiana Pacific Corp. v. Humboldt Bay
Municipal Water Dist. , supra; and National Resources Defense
Cncl. , Inc. v. Arcata National Corp. , supra. )
. Does the Statutory Scheme of the Los Angeles Charter Overcome
the Conflicts with Proposition 73? --
It has- been suggested that Subdivision 6 should remain in
effect because it is part of a .comprehensive "statutory scheme"
imposing campaign limitations which includes lower contribution
limitations when viewed from the Perspective of an election
cycle rather than a per-fiscal-year time frame. (See letters
from Anthony Alperin for the Office"-of the City Attorney of -Los
Angeles, and from Kathleen J. Purcell of the law firm of
Remcho, Johansen and Purcell, attached. )
For example, under the provisions of the Los Angeles
charter a candidate for Mayor may receive $1,000 per
contributor for the primary election, and another $1, 000 if a
run-off election is necessary. The $1, 000 per contributor
limitation applies to all contributors to a candidate's
election campaign, and because the limitations are based on a
"per-election" time frame, the most any one contributor could
give to a candidate is $2,000 during the entire four-year
election cycle.
Under the provisions of Proposition 73, a candidate for
Mayor in Los Angeles could receive $1,000 per fiscal year from
individuals,. and $2,500 or $5, 000 per fiscal year from
political committees and broad based political committees or
parties, respectively. Thus, in a four-year campaign cycle, a
candidate for Mayor could receive up to $4, 000 from an
individual, $10,000 from a political committee and $20,000 from
abroad based political committee or- a political party, rather
than the maximum of $2,000 from any contributor allowed under
Subdivision 6.
To summarize,
Maximum allowed per four-year election cycle:
Under Los Angeles Charter: $2, 000 per contributor
Under Proposition 73: $ -4,-000. per individual
$10,000 per political committee
$20,000 per broad based political
committee or party
1 i --
Chairman Larso:Z, Corartissioners Fenimore,
Lee, Montgomery and Roden
October 12 , 1988
Page 12
Maximum allowed in single fiscal year:
Under Los Angeles Charter: $2,000 per contributor
Under Proposition 73: $1,000 per individual
$2,500 per political committee
$5,000 per broadbased political
committee or party
Kathleen Purcell, an attorney with Remcho, Johansen and
Purcell, argues that in implementing the limitations on
contributions, the Commission "should look to the overall effect
of the local regulation to determine whether the local limits are
stricter than Chapter 5"- of Proposition 730 Ms. "Purcell cites the
Commission's discussion in -In re Alperi1. (1976). .3. FPPC 771. for the ..
premise that the Commission must adopt a broad view toward local
regulation. She notes that in Alperin the Commission gave support
to the notion of allowing flexibility to local governments in
developing their conflict-of-interest codes, pursuant to their
duties under Section 87300.
In Alperin, the Commission held that the Act prohibits a code
reviewing body from going beyond certain requirements of the Act
in adopting local conflict of interest codes. The Commission
discussed the flexibility allowed to local jurisdictions in
developing their conflict-of-interest codes, and specifically
noted that the Act is not intended to preempt the field of
conflict-of-interest regulation. However, the Commission
concluded that local code reviewing bodies must confine their
local legislation within the boundaries set forth in the Act and
only within these basic parameters can a local jurisdiction impose
additional onal requirements. (In re Alperin, supra, at p. 80. )
Anthony Alperin, Assistant City Attorney for, the City of Los
Angeles; notes that both the State of California and the City of
Los Angeles have enacted comprehensive schemes of campaign finance
limitations. Because each scheme operates in the context of other
provisions within its scheme, he asserts that it is necessary to
analyze the "overall impact of each scheme". He cites In re
Iverson (1926) 199 Cal. 582, and Galvan v. Superior Court (1969)
70 Cal. 2d 851, to support his argument that where both the state
and the local jurisdiction have comprehensive legislative schemes
the Commission must take the local scheme as a whole in deciding
whether it is valid under the state law.
Mr. Alperin concludes that there are major differences in the
ways in which the two schemes operate, complicating comparison
between them, and that "because of these basic differences between
the two statutory schemes, we believe that a comparison of the
r r
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12 , 1988
Page 13
contribution limits in the two laws on the basis of a ' fiscal
year' is inappropriate. " (Alperin letter of September 15, 1988,
at page 4. )
Both Mr. Alperin and Ms. Purcell focus on the practical
consequence of imposing the fiscal year- limitation on the Los
Angeles city-wide candidates. They note. that taken from the
perspective of an election cycle of four years, the Los Angeles
charter has stricter limitations,. -as noted previously. . (.See chart
at page 11. )
Additionally, as a practical matter, the fiscal year scheme
constitutes a $1, OOO' per-election limitation for those candidates
involved in elections held in June and November. Thus, a
candidate for Assembly would be subject to a $1,000 limit for the
June primary and to, a. new .$1,000, limit for the- November general
election. If the $1, 000 per-fiscal-year limit is applied to Los
Angeles city-wide candidates, these candidates would be subject
instead to a $1, 000 limit which would cover both elections.
Further, both Mr. Alperin and Ms. Purcell look to the special
election provisions of Proposition 73 (Section 85305) to confirm
their supposition that it is the intent of the initiative that the
lowest limitation to be imposed by the new law is $1, 000 per
election.
Finally, Mr. Alperin and Ms. Purcell conclude that it does not
appear that the limitations of the initiative were intended to
apply to situations where regular primary and general elections
are held during the same fiscal year. Ms. Purcell argues that
such an interpretation would create a two-tiered contribution
system - one tier for jurisdictions with election calendars
consistent with a fiscal year scheme, and one tier for
jurisdictions with two elections in a single fiscal year. She
asserts that the statute should not be construed to achieve such
an "absurd result. "
We find these arguments unpersuasive. Both Ms. Purcell and
Mr. Alperin are asking the Commission to put aside the clear and
specific language of Proposition 73 which limits campaign
contributions on a fiscal year basis. They ask the Commission to
declare this limit "inappropriate" and "absurd. " We have no more
information regarding the purpose and intent of the fiscal year
language than does anyone else, but where the language is clear,
we also have no authority to allow for creative interpretation.
(See Patterson v. County of Tehama, supra, at p. 1318. )
The cases cited in support of the argument for approving the
Los Angeles limitations because they are part of a comprehensive
statutory scheme do not apply in this-situation. The courts have
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 14
focused on the "statutory scheme" of a given body of law where
there is a question of state preemption over local law. One must
look to the whole purpose and scope of the legislative scheme to
determine whether the Legislature intended to occupy a particular
field to the exclusion of all local regulation. (Galvan v.
Superior Court (1969) 70 Cal. 2d 851, citing In re Lane (1962) 58
Cal. 2d 99. )
The question of whether the state has occupied- the field of
campaign contribution limitations is not at issue here.
Proposition 73 specifically authorizes local regulation.
Understanding that state law allows local regulation, the only
analysis to be done is to determine whether the specific
provisions of Section 312 of the City of Los Angeles charter can
be. harmonized with the provisions of the state law.--
Mr. Alperin and Ms. Purcell argue that the authorization from
Proposition 73 gives local jurisdictions the authority to allow
higher campaign contributions in a given fiscal year if the
practical effect of the statutory scheme of the local law is to
impose lower limits per election cycle. We disagree.
It is a basic rule that "a provision in state law which allows
local regulation will not validate an ordinance if it in fact
conflicts with state law. " (Natl. Milk Producers Assn. of
California v. San Francisco (1942) 20 Cal. 2d 101. ) While a local
Jurisdiction may have some flexibility in fashioning its
contribution limitation laws, it must still comply with the
provisions of the state law. "When state law and local ordinance
are in. conflict, the situation .is not changed by declaration that
the Act shall be construed as though no conflict exists. " (In re
Iverson, supra. )
It is important to be mindful of the Commission's role in
interpreting Proposition 73 as applied to local contribution
limitation laws. Because the Commission is the primary
enforcement agency for violations of the Act, it must give clear
guidance to persons subject to its jurisdiction on appropriate
application of the law.
As stated in McMurtry v. State Board of Medical Examiners
(1960) 180 Cal. App. 2d 760, 767:
It is well settled that 'a statute which either
forbids or requires the doing of an act in terms so
vague that men (sic) of common intelligence must
necessarily guess at its meaning and differ as to its
application violates. the first essential of due
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12 , 1988
Page 15
process of law' . This principle applies not only to
statutes of a penal nature but also to those
prescribing a standard of conduct which is the subject
of administrative regulation.
(Citations omitted. )
When the provisions of Proposition 73 are read together,
the meaning.-is plain that the contribution limits are imposed
on a fiscal year basis. There is no room to interpret the
contribution limitations statutes to allow for an election
cycle basis. To read the statutes in such a tortuous manner
would give rise to varying interpretations. Those who read
only the statute would conclude quite reasonably that one.. ,
result was required Those who read the Commission
interpretation would reach a different.conclusion: - This would
lead to the very confusion that results from a vague and
indefinite statute, and as such, would violate due process.
The language of Proposition 73 is "definite enough to
provide a standard of conduct for those whose activities are
prescribed as well as a standard by which the agencies called
upon to apply it can ascertain compliance therewith."
(McMurtry, supra, at p. 766. )
Is Subdivision, 6 Which Conflicts with Proposition 73 , Entirely
Invalid?
It has also been suggested that Subdivision 6 be deemed
completely invalid since -it conflicts with the limitations
imposed by Proposition 73 on individuals by allowing an
aggregate of $2,000 in contributions in a single fiscal year.
The strictest statutory construction could result in such a
conclusion.
Subdivision 6 of the Los Angeles charter provides that
contributors may give $1,000 per election, which allows a
$2,000 maximum if a run-off election is necessary. With
respect to contributions from individuals, Subdivision 6
imposes a higher limit than in Proposition 73. Subdivision 6
imposes lower limits, however, for contributions from
committees and political parties. The Los Angeles charter does
not specify various classes of contributors (e.g. , individuals,
political committees, broad based political committees,
parties) . Instead it simply applies its limits to all
"persons," which includes all categories of contributors.
Where the offending language of a statute can be
mechanically excised, the nonconflicting-provisions may be
saved. (See In re Blaney, supra, and other authorities cited
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 16
at page 7 of this document. ) Here specific words which could
be mechanically stricken from the provision are not used. The
principles of severability prohibit the rewriting of a local
law to conform it to state law. Therefore, attempting to
substitute for the word "person" in the local law a list of the
various classes of contributors specified in Proposition 73,
while at the same time attempting to sever "individual" from
that list, is at odds with these principles.-
However, if Subdivision 61were to be held completely
invalid, contributors to a candidate for -Mayor, City Attorney
or Controller, or to his or her controlled committee, would be
governed only by the limitations in Proposition 73. This would
allow candidates for Mayor, pity Attorney and Controller in the.
City of Los -Angeles to receive more than ten Itimes the current
charter limit on- contributions- from- political- comm l-tteesI broad
based political committees and political parties. (See chart
on. page 11. ) We believe such a consequence would be
inconsistent with the purposes of- bothstatutes.
Subdivision 6 is Valid So Long As it is Applied Within the
Limitations Imposed by Proposition 73
Because of the specific authority given to local
jurisdiction's to enact lower contribution limitations, the
Commission must make every effort to give effect to both laws,
andto avoid harsh results or absurd consequences* (County of
San Diego v._ Muniz, supra.) It is necessary,,, therefore, to
look to the language of the state. law and to harmonize the
provisions of the local law. To this end we conclude that the
$1, 000 limit per contributor per election is valid so long as
no more is contributed in a given fiscal year than is permitted
by Propos tion 73.
. This conclusion -is based on two principles. First, the
fiscal year cycle of Proposition 73 is not circumvented by
local law. Second, the authority for the City of Los Angeles
to impose lower limitations comes from the precise language of
Proposition 73. (Section 85100. ) Therefore, where possible,
we must give full effect to the provisions of the Los Angeles
Charter which impose lower limitations. Subdivision 6 applies
the $1,000 limitation to all contributors, while Proposition 73
. imposes limitations based on classes of contributors. This
lower limitation should be preserved, if possible, while at the
same time implementing the provisions of the state law.
As an example of the practical application of this
conclusion, if an individual has given $1,000 to a Mayoral
candidate or his or her controlled committee before the
primary, and the candidate is forced into a run-off, the
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 17
contributor has reached the limit and may not contribute in the
run-off election. On the other hand, if the contributor has
given $500 or $800 before the primary and the candidate is
forced into a run-off, the contributor may give an additional
$500 or $200 respectively for the run-off campaign. other
classes of contributors may give $1,000 per election, since the
$2, 000 in contributions per fiscal year permitted under the
charter does not exceed the limits imposed by Proposition 73 .
In this way the charter provisions permitting larger
contributions in city-wide elections than allowed 'in other
provisions of the charter is respected, but the specific fiscal
year limitation of Proposition 73 is also applied.
Far from achieving an "absurd" result, as is suggested by
Ms. Purcell, we feel, that harmonizing the Proposition- 73
limitations with the provisions. of. the Loa Angeles charter .
furthers the purposes of both enactments.
Finally, as was pointed out by Ms. Purcell in her letter,
the city has control over its election schedule. She argues
that. a city currently holding elections in April and June could
"circumvent the lower limits imposed by the fiscal year
structure" by scheduling its elections in June and November.
If the .City of Los Angeles chose to amend its charter to alter
its election schedule in order to allow $1,000 in contributions
per election, this would not be a circumvention of Proposition
73 's limitations. -Under those circumstances the local law
would impose lower contribution limitations than Proposition
73, and would be perfectly valid.
C. Subdivision 8 imposes an aggregate limitation on all
contributors to candidates for elective city offices.
Proposition 73 does not include aggregate limits.
Aggregate limitations impose additional restrictions on
contributors, ensuring that all funds given from individual
contributors do not exceed a specified total amount. In an
effort to harmonize the two laws and preserve the purpose and
intent of the limitations, we conclude that the aggregate
limitation provision in the Los Angeles ordinance imposes a
lower contribution limitation than Proposition 73. Therefore,
it is enforceable.
D. Subdivision 10 imposes limits on loans to candidates.
Loans are a type of contribution. Thus, the same analysis used
for contributions limited under Subdivisions 5 and 6, above,
applies to Subdivision 10.
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12 , 1988
Page 18
E. Subdivision 12 imposes some restrictions on a
candidate's use of more than $30, 000 in personal funds in
connection with his or her campaign for elective office.
Proposition 73 contains no restrictions on the amount of
personal funds candidates may contribute to their own
campaigns. Thus, Subdivision 12 is a permissible supplement to
Proposition 73 since it imposes additional restrictions on
candidates.
The remaining provision of Subdivision 12 allows opposing
candidates to solicit and receive, and their contributors to
make, contributions in excess of the contribution limitations
provided in Subdivisions 5 and 6, if the candidate exceeds the
$30, 000- limit- Subdivision 12 currently provides that an
opponent may solicit and receive contributions- in any amount
until he or she has raised contributions in amounts equal to
the personal funds deposited- by the candidate in his or her
campaign account.
The -language of Subdivision 12 which allows contributions
in any amount is in conflict with Proposition 73. However, it
is possible to harmonize the languagd of Subdivision 12 with
state law to a limited extent. Contributors should be
permitted to exceed the Los Angeles contribution limits,, up to
the amounts permitted by Proposition 73.
For example, An opposing candidate wishing- to comply with
Subdivision 12 would be allowed to solicit and accept $1, 000
per fiscal year from persons (individuals and businesses) ,
$2, 500 per fiscal year from political committees,. and $5, 000
per fiscal year from broad-based political committees and
political -parties for that period of time necessary to raise
funds equal to the amount of personal funds deposited by the
candidate in his or her campaign account.
Pi Subsection T provides that Section 312 becomes
operative, and shall apply to all contributions received on and
after July 1, 1985. Further, it provides that contributions
received before July 1, 1985, shall not be used for election
for city office after the general municipal election hold in
1987. consequently, all contributions for the 1989 city
election must comply with the city contribution limitations.
Proposition 73 provides that contributions acquired prior
to January 1, 1989, cannot be used to support or oppose a
candidacy for elective office at the---state or local level.
(Section 85306. ) Both provisions seek to create a "level ,
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 19
playing field" for elections held under the campaign
limitations imposed.
At first blush, Subsection T of the Los Angeles charter is
in conflict with Section 85306 of Proposition 73 since it
allows funds collected prior to January 1, 1989, to be used for
candidacies for elective office after that date. However, the
Commission has recently adopted emergency Regulations 18536 and
18536. 1 to. clarify the restrictions.-on use of campaign funds
required by Section 85306. The emergency regulations permit
candidates to carry forward, after .January 1, 1989, any
contributions received prior to that date, which are in
compliance with the contribution limitations of
Proposition 73.
The .U., .S. Supreme Court has upheld limitations on large
contributions as necessary to prevent corruption. Limitations
on political campaign expenditures, however, are not seen by
the court as a means to prevent corruption. -Because of the
direct restriction on constitutionally protected political
activity, the court has struck down all mandatory expenditure
limitations brought beforeit. "(Buckley v. Valeo,, supra; Fed.
Election CommIn v. Nat. Conserv. Pol. Action (1985) 420 U. S.
480. ) The Commission emergency regulati-ons were adopted in
order to narrow the scope of Section 85306 because of concerns
that the statute otherwise may be unconstitutional. (See
Commission Memorandum, August 31, 1988: Use of Campaign
Funds. )
The practical effect of the regulations is to allow
candidates who have been, or are presently. receiving
contributions within the limitations set by law in Proposition
73 , to use those funds for their campaigns after January 1,
1989. In this way, candidates who have already sought to
eliminate the corrupting nature of the contributions received
will not have their political activities unconstitutionally
restricted by the disgorgement provisions of the new law.27
2/ It has been suggested that the Commission's emergency
regulations supersede Subsection .T of the Los Angeles City
Charter and allow city candidates' and officeholders to carry
over into 1989 campaign funds previously restricted by
Subsection T. We disagree. Such a result would be contrary to
the intent of Proposition 73, which permits local regulation to
the extent it is more restrictive thiih__Pxovided under state
statute.
M W 'r
Chairman Larson, Commissioners Fenimore,
Lee, Montgomery and Roden
October 12, 1988
Page 20
The Los Angeles charter requires that all the contributions
received since July 1, 1985, by candidates for city council or
city-wide office be within the single -election limitation of
$1,000 per contributor required by the city charter. In other
words, assuming all candidates for city council and city-wide
office are complying with the local limitation on
contributions; -no candidate has received contributions from any
single contributor totaling more than $1, 000 since July 1,
1985. Consequently,-. the contributions received by all
candidates for city offices are within the limitations imposed
by .Proposition 73, and are not "campaign funds" for purposes of
Section 85306, with one exception.
The exception to this outcome-is any opposition candidate
who has taken advantage -of Subdivision 12 of the- charter.
Subdivision '12 provides that where a candidate uses personal
funds of $30, 000 or more; the opposition candidate may receive
contributions without regard to the charter's campaign
. limitations, to match the personal funds used. As was
discussed on page 18, Subdivision 12. should be allowed to stand
to a limited extent. While they may exceed the Los Angeles
contribution limits, only those contributions within the
limitations set by Proposition 73 may be rolled over for
campaigns after January 1, 1989.
SUMMARY
The provisions of Proposition 73 supersede local campaign
contribution ordinances exce t where the local ordinances
impose lower contribution limitations than those imposed by
Proposition 73.
The foregoing analysis of the provisions of the City of Los
Angeles' contribution limitation law may be used as a model for
local jurisdictions with limitations currently in effect.
While the discussion of the Los Angeles ordinance does not
exhaustively address all potential issues which could be
raised, it does provide guidelines for future action.
RECOMMENDATION
Absent an advice requestor, staff recommends Commission
adopt, as. its formal policy, the analysis provided herein for
purposes of future Commission advice to local jurisdictions
which currently have in place, or are- contemplating adoption of
campaign contribution limitation laws.
LS:plh:73MEMO
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: November 23, 1988
To: Internal Operations Committee of the Board of Supervisors
From: Victor J. Westman, County Counsel
By: Arthur W. Walenta, Assistant County Counsel
Re: Regulations Adopted By FPPC To Implement Proposition 73
To date, the FPPC has adopted, or has pending, the following
regulations in Title 2, Cal . Code of Regulations, implementing
Proposition 73:
S 18502:. Broad Based Political Committee
Defines broad based political committee and permits
retroactive qualification.
S 18502 . 1: Reporting By Broad Based 'Political Committee
Requires statement of organization to identify broad
based political committee and qualification date prior to
committee contributing more than $2,500 after January 1, 1989 .
S 18520: Statement of Intention to be a Candidate
Expresses the requirements of a statement of intention
to be a candidate re: . specific office, specific election,
multiple statements for multiple offices, and duration.
S 18521: Establishment of Separate Controlled Committee for
Each Campaign Contribution Account
Requires a separate controlled committee respecting
candidacy for each specific office.
S 18522: Payments From Personal Funds for Filing Fee or
CAndidate Statement
Provides that "contribution" and "loan" do not include
payments from a candidate's personal funds to pay a filing fee or
a candidate statement fee.
S 18523: Deposit of Contributions In Campaign Bank Accounts
Provides for the designation or allocation of
contributions to campaign bank accounts.
Internal Operations Committee --2- November 23, 1988
S 18530: Candidate' s Statement; Local Agency Reimbursement
Prohibits expenditure of public funds to pay for
candidate' s statements .
S 18536 : Campaign Funds Possessed. on the Effective Date of
this Chapter
Defines campaign funds possessed on the effective date
of Proposition .73, excluding funds received by a candidate on or
before December 31, 1988, which are brought into-compliance with
the statutory contribution .limitations .
18536 . 1: Establishment of -Separate BAnk Account for
Contributions in Compliance with Contribution Limitations
Provides for separate bank accounts for contributions
--in compliance with proposition 73, received on or .before December
31; 1988; the identification of such contributions; and permits
:- the distribution of such contributions to controlled committees
prior to June 30, 1989 .
§ 18536 . 2: Use of Campaign Funds for any Lawful Purpose
Other than to Support or Oppose a Candidacy for Elective Office
Defines "lawful purpose" as any purpose other than for
personal use, identified in Elections Code Division 9, Chapter 5;
defines "expenditure" to support or oppose a candidacy for
elective office; identifies certain exemptions .
18901: Mass Mailings Sent at Public Expense
Defines "public expense; " identifies mailings that are
not prohibited mass mailings .
The text of these adopted or proposed regulations is
included in our November 17, 1988, and November 28, 1988,
mailings to the members of the Board of Supervisors .
AWW:da
OFFICE OF COUNTY ADMINISTRATOR
CONTRA COSTA COUNTY
Administration Building
Martinez, California
To: Arthur Walenta Date:
Assistant County Counsel November 29, 1988
From: Claude L. Van Marter ( kP Subject: Election Campaign
Assistant Administra o Ordinance
At the end of the Internal Operations Committee meeting November
28, 1988, the Committee decided that they wanted to address the
Election Campaign Ordinance issue again on Monday, December 12,
1988. The Committee members have.. agreed to meet at 8:15 A.M. in
order to hear this item.
Attached is a copy of our proposed Committee report which the
Committee will present to the Board on December 6, 1988 . Do you
have any problems with anything in the Committee report? Can you
have the opinions and language which is requested to our office
by Wednesday, December 7, so we can include it in the Committee ' s
packet?
CLVM:clg
Attachment
cc: Supervisor Sunne McPeak
Supervisor Tom Torlakson
Bob Delevati, Elections Supervisor
Kevin Kerr, Deputy County Counsel
Jim Sepulveda, Deputy District Attorney