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HomeMy WebLinkAboutMINUTES - 12031996 - D3 D.3 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on December 3, 1996, by the following vote: AYES: Supervisors Rogers, Bishop and DeSaulnier NOES: Supervisor Smith ABSENT: None ABSTAIN: None Subject: Introduction of an Ordinance to Conform the County's Campaign Ordinance to Proposition 208, to Make Additional Changes to the County's Campaign Ordinance and to Take Other Related Actions. Following consideration of the report from the Internal Operations Committee on the County's Campaign Ordinance, the Board took the following actions: 1. INTRODUCED, WAIVED reading, and FIXED December 10, 1996, to adopt Sections I through X of the attached ordinance (with necessary technical changes) which revises the County Campaign Ordinance to comply with Proposition 208. The ordinance makes the following changes to the County's existing ordinance: A. Makes technical changes to the County's Campaign Ordinance to comply with the provisions of Proposition 208, including: i. Repealing the debt retirement cycle, deferring instead to the debt retirement provisions in Proposition 208 (90 days). ii. Reducing the contribution limits to those permitted under Proposition 208. iii. Repealing the concept of election cycles, which are not provided for in Proposition 208. iv. Repealing the concept of "broad-based committees", which are not provided for in Proposition 208. B. Limits the maximum contribution which can be received to $100 per contributor and leaves in place the existing voluntary expenditure limit. For candidates who observe the voluntary expenditure limits, the individual contribution limit would be decreased from $750 to $500. C. Provides for a trigger of $10,000 which would be added to a candidate's expenditure limit under certain circumstances when his or her opponent refuses to accept the voluntary expenditure limits. Each time the opponent either raises or spends $10,000, the candidate's expenditure limit would be raised $10,000. D. Provides for a trigger of $10,000 which would be added to a candidate's expenditure limit each time an independent committee which is supporting the candidate's opponent or opposing the candidate either receives or spends $10,000. E. Repeals the Fair Campaign Pledge on the basis that it should not be in the ordinance if violations of the Pledge are not able to be enforced. Page 1 of 2 D.3 2. REFERRED to the 1997 Internal Operations Committee the question of whether voluntary expenditure limits should be applied to non-Supervisorial elected department heads (District Attorney, Sheriff-Coroner, Clerk-Recorder, Auditor-Controller, Treasurer-Tax Collector, & Assessor). 3. REFERRED the subject of the County's Campaign Ordinance to the 1997 Internal Operations Committee for continuing oversight. 4. REFERRED to the 1997 Internal Operations Committee the possibility of providing for disclosure on the ballot of the fact that a candidate has refused to observe the spending limits. 5. REQUESTED Contra Costa Television (CCTV) to consider airing more of the political debates, including ones which are sponsored by groups other than the League of Women's Voters and try to find more and better ways to publicize when the debates are being aired. 6. REQUESTED the District Attorney to comment on what level of enforcement will be pursued and how quickly enforcement will be pursued when the County's Campaign Ordinance is violated. 7. DIRECTED County Counsel to return to the Board of Supervisors on December 10, 1996, with the remaining portions of the proposed Campaign Ordinance as reported by the Internal Operations Committee (namely Sections XI, XII, and XIII of the attached draft ordinance), along with any changes which may be proposed by Supervisor Rogers following discussions with the District Attorney's Office regarding their concerns about the constitutionality and enforceability of these sections. I hereby certify that the foregoing is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 3 1996 Phil Batchelor, Clerk of the Board of Supervisors and C unty Administrator sti e Wampler, Deputy Clerk cc: Supervisors County Administrator County Counsel District Attorney Assessor Assistant County Registrar of Voters Auditor-Controller County Clerk-Recorder Sheriff-Coroner Treasurer-Tax Collector Page 2 of 2 7J. 3 TO: BOARD OF SUPERVISORS IOC-05 Contra 1. FROM: INTERNAL OPERATIONS COMMITTEE - Costa ` X ,z November 18, 1996 County DATE: INTRODUCTION OF AN ORDINANCE TO CONFORM T q TY'S SUBJECT: CAMPAIGN ORDINANCE TO PROPOSITION 208, TO MAKE ADDITIONAL CHANGES TO THE COUNTY'S CAMPAIGN ORDINANCE AND TO TAKE OTHER RELATED ACTIONS SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: 1. INTRODUCE, WAIVE reading, and FIX December 10, 1996 to adopt the attached ordinance which revises the County Campaign Ordinance to conform it to Proposition 208 and make additional changes to the County's Campaign Ordinance. The ordinance makes the following changes to the County's existing ordinance: Makes technical changes to conform the County's ordinance to the provisions of Proposition 208, including: ✓ Repealing the debt retirement cycle, deferring instead to the debt retirement provisions in Proposition 208 (90 days). ✓ Reducing the contribution limits to those permitted under Proposition 208. ✓ Repealing the concept of election cycles, which are not provided for in Proposition 208. ✓ Repealing the concept of "broad-based committees,"which are not provided for in Proposition 208. CONTINUED ON ATTACHMENT: )LYES YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): r Y6� ISH P JIM Rn.G€RS ACTION OF BOARD ON December 3, 1996 APPROVED AS RECOMMENDED OTHER F SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS(AB ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES- AND ENTERED ON THE MINUTES O BOARD ABSENT: AB OF SUPERVISORS ON T E SHOWN. ED Contact: See Page 4 PHIL BATCHELOR,CLERK OF THE BOARD OF CC: SUPERVISORS AND COUNTY ADMINISTRATOR BY DEPUTY b"5 IOC-05 Limits the maximum contribution which can be received to $100 per contributor but leaves in place the existing voluntary expenditure limit. For candidates who observe the voluntary expenditure limits, the individual contribution limit would be increased to $500. Provides for a trigger of$10,000 which would be added to a candidate's expenditure limit if his or her opponent refuses to accept the voluntary expenditure limits. Each time the opponent raises $10,000, the candidate's expenditure limit would be raised $10,000. Provides for a trigger of$10,000 which would be added to a candidate's expenditure limit each time an independent committee which is supporting the candidate's opponent or opposing the candidate receives or spends $10,000. Redefines"mass mailing"to provide the same limitations to non-mailed mass mailings (walking pieces) as to mailed mass mailings and clarifies the requirements for disclosure of a mass mailing. Adds additional changes to clarify the requirements for campaign advertising disclosure. Provides for disclosure of paid telephone banks, including the source of funding. Directs the County Clerk to do three supplemental mailings to voters of candidate "debates by mail" in order to educate and inform the voters, similar to what the Secretary of State has done. Repeals the Fair Campaign Pledge on the basis that it should not be in the ordinance if violations of the Pledge are not able to be enforced. 2. REFER to the 1997 Internal Operations Committee the question of whether voluntary expenditure limits should be applied to non-Supervisorial elected department heads (District Attorney, Sheriff-Coroner, Clerk-Recorder, Auditor- Controller, Treasurer-Tax Collector, & Assessor). 3. REFER the subject of the County's Campaign Ordinance to the 1997 Internal Operations Committee for continuing oversight. 4. REFER to the 1997 Internal Operations Committee the possibility of providing for disclosure on the ballot of the fact that a candidate has refused to observe the spending limits. 5. REFER to the 1997 Finance Committee the necessary financing for the "Debate by Mail" mailings. 6. REQUEST Contra Costa Television (CCTV) to consider airing more of the political debates, including ones which are sponsored by groups other than the League of Women's Voters and try to find more and better ways to publicize when the debates are being aired. - 2 - D , 3 IOC-05 7. REQUEST the District Attorney to comment on what level of enforcement will be pursued and how quickly enforcement will be pursued when the County's Campaign Ordinance is violated. BACKGROUND: On November 5, 1996, the Board of Supervisors referred to our Committee review of the County's entire Campaign Ordinance in the event that either Proposition 208 or Proposition 212 or both passed. As the Board is aware, Proposition 208 passed and Proposition 212 was defeated. On November 18, 1996, our Committee met to review the County Campaign Ordinance in light of the passage of Proposition 208. Present for our meeting were Karen Mitchoff from Supervisor DeSaulnier's Office; Mary Ann Mason, Deputy County Counsel; Kathy Radke, unsuccessful candidate for County Supervisor in District Il; Linda Lewis, from Kathy Radke's campaign; Frank Perrera; Steve Weir, County Clerk-Recorder; and Mike Hytha from the Contra Costa Times. Supervisor Rogers noted that he had talked with the people from the California Commission on Campaign Finance. Their understanding is that the new contribution limits are effective as of January 1, 1997, but that contributions received prior to January 1, 1997 are ignored and therefore a candidate can accept a contribution up to the new limits for purposes of retiring debt regardless of what was accepted prior to January 1, 1997. Kathy Radke presented the attached letter and documentation to our Committee and noted the problem she had run into toward the end of the campaign when she believes her opponent violated the Fair Campaign Pledge and when an independent committee sent a mailer supporting her opponent which, in Ms. Radke's view, also violates the County's Campaign Ordinance. In order to respond to the violation, Ms. Radke would have had to violate the spending limits and therefore the Fair Campaign Pledge. She decided not to do so and believes that this decision contributed to her defeat in the election. No enforcement of the alleged violation of the Fair Campaign Pledge would accomplish anything material in terms of changing the vote at this point. Ms. Radke registered her complaint with the District Attorney's Office which has recused itself in view of the fact the Ms..Radke's opponent is the mother of a deputy district attorney. The complaint has been referred to the State Attorney General's Office. Ms. Radke noted the letter from Jim Sepulveda in the District Attorney's Office and his comments that ". . . just because laws exist on paper does not necessarily mean that they exist in reality." Ms. Radke asked that the Board of Supervisors insure that any ordinance that is enacted have realistic enforcement powers or that the Board simply repeal the County ordinance. Supervisor Rogers noted that he would like to provide a mechanism for leveling the playing field when a candidate refuses to abide by the voluntary limit. This would happen by allowing a candidate to increase his or her spending limits by increments of$10,000 each time the other candidate raises $10,000. Supervisor Rogers also noted that the County does not receive any assistance from Proposition 208 in terms of independent expenditure disclosure because of a $50,000 cutoff. There are no limits on independent expenditures as long as the contributor does not also contribute to a candidate. He proposes to allow a candidate to increase his or her expenditure limit by $10,000 each time an independent committee raises $10,000. - 3 - DO IOC-05 Our Committee is recommending that the Board of Supervisors adopt an ordinance that conforms the County's campaign ordinance with Proposition 208 by making the changes outlined in recommendation #1 above. The point regarding paid telephone banks was not discussed at the Committee meeting, but has been added to the Ordinance at the request of Supervisor Rogers because it is consistent with the desire of the Committee to address loopholes not covered in Proposition 208. We also believe that the 1997 Internal Operations Committee should consider the extent to which the voluntary expenditure limits should be applied to non- supervisorial elected officials. We are also suggesting that next year's Internal Operations Committee consider whether to identify on the ballot any candidate who has refused to abide by the voluntary expenditure limits. There is clearly a cost to implement the "Debate by Mail" provisions of the ordinance. These costs may run between $100,000 and $200,000 in an election year. We believe the 1997 Finance Committee should consider these costs for the 1997-98 budget of the County Clerk. We are also asking that CCTV consider airing debates that are sponsored by groups other than the League of Women Voters. _Finally, we are asking that, in view of the problems identified by Ms. Radke, that we ask the District Attorney to comment on the extent to which his office will enforce the County ordinance and how quickly such enforcement will take place since prompt enforcement is essential in the case of many alleged election violations. cc: County Administrator County Counsel District Attorney County Clerk-Recorder Assistant County Registrar of Voters Sheriff-Coroner Auditor-Controller Treasurer-Tax Collector Assessor - 4 - COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA To: Supervisors Bishop and Rogers, Internal Operations Committee From: Victor J. Westman, County Counsel By: Mary Ann McNett Mason, Deputy County Counsel �• 14 Date: November 27, 1996 Re: Draft Amendments to conform County's Election Campaign Ordinance to Proposition 208 The Internal Operations Committee requested that this office draft amendments to the County's Election Campaign Ordinance and Campaign Spending Reform Ordinance to conform those ordinances to Proposition 208 and to specify circumstances under which the voluntary expenditure ceiling increases, to add a Debate by Mail for supervisorial candidates, and to clarify campaign advertising disclosure requirements. These amendments are scheduled for consideration by the Committee on December 2, 1996 and by the Board of Supervisors on December 3, 1996. The draft amendments are attached hereto. Changes are shown by underlining and deletions are shown by strike-out. Also attached are comments from Deputy District Attorney Jim Sepulveda about enforcement of the ordinances. Sections Repealed. Pursuant to the Internal Operations Committee's direction, the draft amendments (Section II) would repeal all provisions pertaining to the Fair Campaign Pledge. In addition, to conform the ordinance to Proposition 208, section 530-2.407 "Contributions to committees making independent expenditures" would be repealed. This section, which limited contributions to committees making independent expenditures for or against supervisorial candidates, is preempted by Proposition 208 (Government Code section 85500 (b)) which provides that independent expenditure committees which make independent expenditures of one thousand dollars or more supporting or opposing a candidate shall not accept any contribution in excess of two hundred and fifty dollars. Section 530-2.711 "Debt Retirement" would be repealed because it is preempted. Proposition 208 provides that as to campaigns occurring after January 1, 1997, candidates can accept campaign contributions no more than 90 days after the election. Contributions accepted during the 90 days after the election shall be used only to retire debt. (Gov't. Code §85305 (c).) These provisions do not apply to retirement of debt for elections held prior to . 1 1 1✓ e January 1, 1997. However, as of January 1, 1997, the contribution limits specified in Proposition 208 are applicable to the collection of funds to retire debt for pre-1997 campaigns. Sections added and amended. 1. Section 530-2.215 "Small Contributor Committee" is added to define small contributor committees, a new form of committee created by Proposition 208. Small contributor committees have a membership of at least one hundred individuals; have been in existence for at least six months; are not candidate controlled committees; and in a calendar year do not,receive contributions from any person exceeding fifty dollars. (Gov't. Code § 85203.) Proposition 208 allows small contributor committees to contribute at higher levels than other types of contributors. ((Gov't. Code § 85302.) In contrast, Proposition 208 omits reference to broad based political committees and treats these committees the same as any . other individual contributor. 2. Section 530-2.702 is amended to specify that section 530-2.403 "In-kind contribution of campaign office space" does not apply to supervisorial candidates. That section permitted the acceptance of in-kind contributions of office space of up to $5,000. That amount exceeds the contribution limits imposed by Proposition 208. (Gov't. Code §§ 85301, 85402.) Proposition 208 provides that for candidate's in districts of one hundred thousand or more residents, the contribution limit for candidates accepting a voluntary expenditure ceiling imposed by the local jurisdiction are $500 per individual and $1,000 per small contributor committee. For candidates who do not accept the ceiling, the contribution limits are $250 per individual and $500 per small contributor committee. (Gov't. Code § 85301(c ); 85402 (b).) Proposition 208 allows local jurisdictions to set stricter limits. (Gov't. Code § 85706.) 3. Section 530-2.703 "Individual campaign contributions" is amended to reduce the contribution limit for candidates who accept the voluntary expenditure ceiling to $500, the maximum contribution Proposition 208 permits for such candidates. (Gov't. Code § 85402 (b).) In addition, references.to election cycles are deleted because Proposition 208 limits the acceptance of contributions per election and prohibits candidates in supervisorial districts of fewer than one million residents from accepting campaign contributions more than six months before the primary election. (Gov't. Code § 85305 (a).) References to recall candidates are deleted because Proposition 208 does not differentiate between recall candidates and other candidates. 4. Section 530-2.704 "Broad Based Political Committee Campaign Contributions" is amended to refer to "Small Contributor Committee Campaign Contributions." All references to broad based political committees are deleted and replaced with references to small contributor committees. Contribution limits for small contributor committees are established at $200 for candidates who do not accept the voluntary expenditure ceiling and at $1000 for candidates who do accept the ceiling. (Gov't. Code §§ 85302; 85402 (c); 2 �f3 85706 (b).) The ratio of the differential contribution limits for small contributors committees ($200/$1,000) is the same as the ratio of the differential contribution limits for other types of contributors ($100/$500.) The aggregate limitation on acceptance of contributions from broad based political committees is deleted. Note that Proposition 208 provides that a candidate may accept no more than 25 percent of the recommended voluntary expenditure limits from other than individuals, small contributor committees and political parties. (Gov't. Code § 85309.) We note that the level of the individual and small contributor committee contribution limits could be subject to legal challenge on the basis that the limits for candidates not accepting the voluntary expenditure ceiling are too low and that the five to one ratio of the differential contribution limits would have a coercive effect on candidates to either adopt the limits and thereby restrict their expenditures or forgo the ability to collect contributions at the higher level so as to violate the First Amendment guarantee of free speech. (See Carver v. Nixon (1995) 72 F.3d 633; National Black Police Assn. V. District of Columbia Bd. Of elections and Ethics (D.D.C. 1996) 924 F.Supp. 270; Wilkinson v. Jones (W.D. Ky 1995), 876 F.Supp. 916.) 5. Section 530-2.706 "Limitation on personal loans" would be amended to delete references to election cycles. Proposition 208 limits the amount a candidate can loan to his or her campaign at any one point in time to $20,000. Thus, the draft.amendments also would reduce the amount which a candidate accepting,the voluntary expenditure ceiling may loan his or her campaign from $30,000 to $20,000. (Gov't. Code § 85307 (c ).) 6. Numerous changes would be made to section 530-2.707 "Voluntary expenditure limits." Proposition 208 allows counties to impose voluntary expenditure limits and provides for higher contribution limits for candidates adopting limits imposed by a county. (Gov't. Code §§ 85400 (c ); 85402 (b); 85706.) References to election cycles and recall candidates would be deleted. Two new provisions allowing increases in the voluntary expenditure ceiling would be added. When a candidate accepting the ceiling has an opponent (or opponents) who does not accept the limits, the candidate's expenditure ceiling would increase by ten thousand dollars ($10,000) each time the opponent (or opponents) receive cumulative contributions totaling ten thousand dollars ($10,000) or make cumulative expenditures totaling ten thousand dollars ($10,000.) To determine if the threshold for increasing the ceiling is reached, the contributions of all opponents not accepting the ceiling would be aggregated as would the expenditures of all opponents. Increases would be tied to the candidate's receipt of disclosures of contributions and expenditures from the opponent. Until twenty days before the election, the opponent(s) would have to provide 72 hour notice by facsimile or overnight mail of either the receipt of contributions in multiples of ten thousand dollars ($10,000) or the making of expenditures in multiples of ten thousand dollars ($10,000). During the last twenty days before the election, the opponent(s) would have to provide 24 hour notice of either contributions received in multiples of three thousand dollars ($3,000.) or expenditures made in multiples of three thousand dollars ($3,000.) For each 3 notification, the opponent would disclose either contributions or expenditures, whichever is higher. Similarly, the ceiling would increase by ten thousand dollars ($10,000) for a candidate accepting the ceiling each time independent expenditure committees opposing the candidate or supporting his opponent, either individually or in the aggregate, make independent expenditures of ten thousand dollars ($10,000) or receive contributions of ten thousand dollars ($10,000.) Again, increases in the expenditure ceiling are tied to disclosures from independent expenditure committees of amount spent and contributions received. The committee disclosures would be made in the same time and manner as the candidate disclosures. (Draft sections 530-2.707 (e), (f), (1), (j).) The draft amendments also would provide that notwithstanding the provisions allowing an increase in the expenditure ceiling, the ceiling will not exceed $160,000 in any event. (Draft section 530-2.707 (g).) References to the debt retirement cycle would be deleted. Repayment of debt during the ninety day period following an election would not be an expenditure subject to the expenditure ceiling. (Draft section 530-2.707 (1).) Former section 530-2.707 (h) "Timing of expenditures" would be deleted. It is preempted by Proposition 208 which specifies how expenditures are to be attributed between the primary and general election. (See Gov't. Code § 85403.) 8. Section 530-2.710 "Contributions cumulated" would be amended to delete references to election cycles and broad based political committees, to refer to small contributor committees, to make the cumulative contribution limits consistent with those of Proposition 208, to provide that when a contributor contributes to a candidate, the cumulation of contributions applies not only in the event of contributions to an independent expenditure committee on behalf or that candidate, but also to contributions to an independent expenditure committee opposing that candidate's opponents. 9. Section 530-2.712 "Debate by Mail" would be added to authorize the County Clerk to send out three separate debate mailings for participating supervisorial candidates in the six weeks preceding an election. Candidates could choose how many debates by mail, if any, in which to participate. For each debate, participating candidates would submit a camera-ready one page statement of their views on the issues and their qualifications. The statement could not make any references to opponents, would be in black and white print, and could include photographs. For each statement the County Clerk would designate a filing fee of up to $200. There would be a challenge period of five work days after the final date for submission of statements. During that period, any person could file a civil action challenging a candidate's submission on the basis that it refers to the candidate's opponent. In the event of a civil action, mailing of the challenged statement would be suspended subject to order of the Superior Court. The County Clerk would notify declared candidates of submission dates, the challenge period and mailing dates. Mailing dates of five, ten and twenty days before the election are specified in the draft ordinance. If the County Clerk obtained approval from a utility or tax collector to mail the debate materials, the Clerk would decide which preestablished mailing date is closest in time to the actual mailing by the utility and omit that preestablished mailing date for that election. The Clerk would adopt regulations to provide for a statement printed on the debate materials specifying that the 4 County did not prepare the materials and is not responsible for their content. (Proposed section 530-2.712.) Assuming that the $200 filing fee would not cover the cost of the debate mailing, this provision appears to be subject to legal challenge on the grounds that it requires an unlawful expenditure of public funds. The county has only those powers expressly granted to it by the Constitution and by statute and those others that arise by necessary implication therefrom. (Gov't. Code §§ 23003; 25207; Byers v. Board of Supervisors, (1968) 262 Cal.App.2d 148.) While we have not researched the matter, it is not clear that the county has authority to subsidize candidates' participation in the debate by mail. We cannot ensure that the provision would withstand a taxpayer's challenge. In addition, assuming the cost of mailing would exceed $200, proposed section 530-2.712 could be subject to challenge on the basis that it violates Government Code section 85300 which provides: "No public officer shall expend and no candidate shall accept any public moneys for the purpose of seeking elective office." As a general rule, in the absence of clear and explicit legislative authorization, a county may not spend public funds to promote a partisan position in an election campaign. However, a county may provide neutral, informational material. (Stanson v. Mott, (1976) 17 Cal.3d 206.) In Stanson, the California Supreme Court identified the dissemination at public expense of campaign literature prepared by proponents or opponents of a ballot measure as "improper campaign activity." The Fair Political Practices Commission recently filed an enforcement action against the County of Sacramento and fined that county ten thousand dollars for failing to file campaign statements disclosing expenditures made by the county in connection with a state proposition and local ballot measures. The Commission found that the County's mailers inserted in utility bills "taken as a whole" were not neutral dissemination of information but amounted to partisan campaigning. We cannot say how the FPPC would characterize the Debate by Mail. Before adopting the provision, to avoid any possible violation of the Political Reform Act and accompanying regulations, you may want to authorize county staff to obtain the FPPC's views. Obtaining the FPPC's written views and adhering to those views would protect the Board from being subject to either civil or criminal sanction under the Political Reform Act. However, the FPPC review would not address or protect the County from a taxpayer suit regarding a possible improper gift of public funds. 10. Section 530-2.902 "Disclosure of Contributors Required" would be amended to clarify that " mass mailing" by independent expenditure committees refers to items sent by any means, including hand delivery. Additional requirements for disclosures of contributors on the bottom one-third of the front page of a mass mailing would be added, including the requirement that the independent expenditure committee use the bottom one-third of the front page of the mass mailing solely for the purpose of making the required disclosures. 11. Section 530-2.904 "Disclosure of Paid Telephone Banks" would be added to 5 require that independent expenditure committees which pay persons to operate telephone banks assure that the paid callers make the same disclosures about the committee's two largest contributors and out-of-county funding that are required for mass mailings. The disclosures would have to begin in the first thirty seconds of the telephone call. The section would not apply when an independent expenditure committee paid for telephone equipment and bills but used volunteers to make calls. This provision and section 530-2.902 "Disclosure of Contributors Required" could be subject to challenge on the basis that they impermissibly restrict First Amendment Rights by requiring the publication of the identity of persons engaged in political speech and by regulating the content of political speech. In McIntyre v. Ohio Elections Com'n (1995) 115 S.Ct. 1511, the Supreme Court held that an Ohio statute prohibiting the distribution of any anonymous campaign literature was overbroad and violated the First Amendment. Examining the statute with "exacting scrutiny," the Court ruled that Ohio's interests in preventing fraudulent and libelous statements and in providing the electorate with relevant information, were insufficient to support the statute's disclosure requirement. However, in Griset v. FPPC (1994) 8 Cal.4th 851, cert. den. 115 S.Ct. 1794, the California Supreme Court upheld sender identification requirements as applied to candidates. It is not clear how these authorities would be applied to disclosures required in telephone calls. In light of McIntyre, we cannot state with legal certainty that the provisions would withstand challenge. Please note that until this ordinance is adopted and becomes effective, potentially mid- January 1997, the Supervisorial candidates and incumbents would be subject both to the provisions of this ordinance and Proposition 208, to the extent the provisions of the County ordinance are not preempted by Proposition 208. MAM\am attachments cc: Board of Supervisors County Administrator Jim Sepulveda, Deputy District Attorney 6 X13 Gary T.Yancey District Attorney OFFICE OF THE DISTRICT ATTORNEY COUNTY OF CONTRA COSTA TO: Mary Ann Mason F111i Deputy County Counsel L..,�� _ s FROM: James L. Sepulveda p MARTINEZ,CALIF � Deputy District Attorney DATE: November 27, 1996 SUBJECT: County Campaign Ordinance I understand that based upon the passage of Proposition 208,the Board of Supervisors is considering amending the current County campaign ordinance to not only bring it into conformance with Proposition 208 but to add additional provisions as well. After having done legal research into the Constitutional issues brought into play by campaign finance laws,I have serious questions as to the constitutionality of most of the County's ordinance, at least as that ordinance will exist after January 1, 1997. The United States Supreme Court has made it very clear that campaign contribution limits and other disclosure requirements effect constitutionally protected free speech. Buckley v. Valeo (1976)424 U.S. 1. In order for said restrictions to pass constitutional muster,they must pass what the courts call a"strict scrutiny"test. The restrictions on speech must serve a compelling state interest and be drafted narrowly so as to not unnecessarily abridge constitutional rights. Where such restrictions have been upheld,the compelling state interest proffered as been the attempt to reduce corruption or the appearance of corruption by limiting monetary contributions and the possible quid pro quo effect such contributions produce. However,the burden is on the legislative body to establish that the recited harms are real and that the regulations will alleviate the harms in a direct and material way. Carver v.Nixon(8th Cir.) 72 F.3d 633, 637. It would, therefore, seem that although the County may have the legal authority to impose stricter standards than those set forth in Proposition 208, said additional restrictions are subject to the strict scrutiny test. Because for the last several years there have been virtually no state imposed limits on campaign contributions or expenditures, it may well have been appropriate for the County to address that "void"by adopting reasonable restrictions. However, on January 1, 1997, once Proposition 208 goes into effect, that"void"no longer exists. Therefore,pursuant to the dictates of Bu_ cklev and its progeny, unless the County can demonstrate that it needs greater restrictions than those afforded by Proposition 208 in order to actually reduce corruption or the appearance of corruption, the harsher restrictions imposed by the County ordinance would seem to be an D, 3 unconstitutional abridgement of free speech. It does seem appropriate for the County to adopt reasonable voluntary spending limits in accordance with the guidelines set forth in Proposition 208. Said proposition contemplates that local jurisdictions will determine the appropriate spending limits for appropriate local offices. However, additional local restrictions on campaign contributions, independent expenditures, and advertising and other campaign disclosures would seem to be unconstitutional unless the rigors of the strict scrutiny test can be met. Given the fact that no one yet knows how effective or ineffective the Proposition 208 restrictions are going to be in regulating corruption or the appearance of corruption, it would appear to be an impossible task to prove that Contra Costa County, at this point in time,needs to have more restrictive laws. Since it is apparent that a number of legal challenges will be filed against the constitutionality of Proposition 208, the issue arises as to what happens if its provisions are enjoined from going into effect by a court. Under that circumstance, should not the County have an ordinance in place that deals with contribution and disclosure issues? From an enforcement point of view, since the provisions of Proposition 208 are so similar to the county ordinance, a constitutional challenge to one is in reality a constitutional challenge to the other. Until the constitutional aspects of such a challenge could be determined, it would be unlikely that this office would undertake any enforcement action under the ordinance. Therefore,there is really no downside to the County in waiting to see how the challenges to Proposition 208 fare in the courts. Thank you for your consideration of our views in this matter. i t n � 3 ORDINANCE NO. 96- (Amendments to conform Campaign Spending;Reform Ordinance to Proposition 208) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code). SECTION I. SUMMARY. This ordinance repeals the debt retirement cycle and the Fair Campaign Pledge. As to candidates for supervisorial office, this ordinance modifies the contribution limits and loan limits and deletes references to election cycles, broad based political committees, and recall candidates for consistency with Proposition 208. This ordinance imposes contribution limits for small contributor committees; provides for increases in the voluntary expenditure ceiling in specified circumstances; requires notifications by candidates who do not adopt the ceiling; imposes additional campaign advertising disclosure requirements; provides for disclosure of paid telephone banks; and authorizes the County Clerk to provide a Debate by Mail for candidates. SECTION II. Sections 530-2.407"Contributions to committees making independent expenditures," 530-2.602"Pledge," 530-2.603 "Exemptions from campaign expenditure limit," 530-2.604"Voluntary Pledge," 530-2.606 "Filing," 530-2.608 "Clerk's diifies,' 530-2.708 "Separate and special election cycles," 530-2.709 "Fair Campaign Pledge," and 530-2.711 "Debt Retirement" are hereby repealed. SECTION III. Section 530-2.215 is added to read: . 530-2.215. Small;Contributor Committee. "Small contributor committee" shall have the same meaning as Government Code section 85203. It means any committee which meets all of the following criteria: it has a membership of at least 100 individuals; all the contributions it receives from any person in a calendar year total fifty dollars or less; it has been in existence for at least six months; it is not a candidate controlled committee. (Ord. 97- §3.) SECTION IV. Section 530-2.702 is amended to read: 530-2.702 Application. (a) This Article applies only to candidates for the office of County Supervisor. Unless otherwise specified, "candidate" includes recall candidates. "Recall candidates" means those candidates who are running to replace an incumbent Supervisor who is the subject of a ballot measure calling for his or her recall. (b) Ordinance Code sections 530-2.402, 530-2.403, 530-2.404, 530-2.405 and 530-2.603 1 `t7 3 shall not apply to candidates for the office of County Supervisor. (c)To the extent that there is any conflict between the provisions of this article and the other provisions of Chapter 530-2, the provisions of this article shall prevail as to campaigns for the office of County Supervisor. (Ords. 97- § 4; 95-8.) SECTION V. Section 530-2.703 is amended to read: 530-2,703 Individual campaign contributions (a)Fora single election, no person or political committee(other than the candidate or a small contributor committee) shall make, and no candidate or campaign treasurer shall accept, any contribution to or for a single candidate for County Supervisor or to or for a committee authorized in writing by the candidate to accept contributions to him or her, which will cause the total amount contributed by that person or political committee in support of that candidate for that election to exceed one hundred dollars($100), except as provided in subparagraphs(b)and (c)bclorov. (b)For candidates who adopt the voluntary expenditure ceiling defined in section 530- 2.707, fQr a single county election, no person or political committee (other than the candidate or a small contributor committee) shall make, and no candidate or campaign treasurer shall accept, any contribution to or for a single candidate for County Supervisor or to or for a committee authorized in writing by the candidate to accept contributions to him, which will cause the total amount contributed by that person or political committee in support of that candidate for that election o exceed five hundred dollars($500). (c recall candidates vdio have-adopted the voluntwy expenditure ceiling defined i! section 8,5305 subsection(c) (1) and-(2) shall apply-. (Ords. 97- § 5; 95-8 .) SECTION VI, Section 534-2.704 is amended to read: 530-2,704 Small contributor committee campaign contributions (a)For a single county election, no small contributor committee shall make, and no candidate or campaign treasurer shall accept, any contribution to or for a single candidate for County Supervisor or to or for a committee authorized in writing by the candidate to accept contributions to him or her, which will cause the total amount contributed by such small contributor ibutor committee in support of that candidate for that election to exceed LWQ hundred dollars ($2.�—O), except as provided in subparagraphs(b) . 2 • LJ� (b)For candidates who adopt the voluntary expenditure ceiling defined in section 530- 2.707, for a single county election. no small contributor committee shall make, and no candidate or campaign treasurer shall accept, any contribution to or for a single candidate for County Supervisor or to or for a committee authorized in writing by the candidate to accept contributions to him or her; which will cause the total amount contributed by such small contributor committee in support of that candidate for that election to exceed one thousand dollars($1 000). Imrsingle county election cycle, the total aggiegate amount of cont6butions from a broad based political cormfittee which a candidate adupting the voluntary expenditme ceiling I A I hall not exceed fbi-ty thousand dollars ($40,6%� (c) For recall candidates Who adopt the voluntary expenditure ceiling defined in sectiot 53EHI.767, duting the special election cycle fbr the election to mplace the inctinibent s*ect to mcall, the cont6bution finfits. fbi special electivAllks specified in 6oveminent eode section 85365 StIbsection(c) (3) shail apply. fn a single speciai election cycle, the total aggi egate amotint o conttibutions from ail bioad based political committees which a recail candidate adopting the voluntary expenditate ceffing may accept shall nut exceed fbrty thousand dollars($40,000.) (Ords. 97- § 6; 95-8.) SECTION VII. Section 530-2.705 is amended to read: 530-2.705 Return of excess contributions. If for any reason the contribution limits set forth in Section 530-2.703 and 530-2.704 have been exceeded, the candidate, candidate, or campaign treasurer may within thirty days after receipt, return the excess amount of the contribution to the contributor without penalty. candidates a-hall be governed by th Df the Califfirnia eode of Regulations. (Ords. 97- §7; 95-8.) SECTION VIII. Section 530-2.706 is amended to read: 530-2.706 Limitation on personal loans. (a)-Fgr-a single county election, no candidate'shall lend to his or her campaign or controlled committee any amount in excess of five thousand dollars($5,000) except as provided in subparagraph(b)below. (b)For candidates who adopt the voluntary expenditure ceiling defined in section 530- 2.707, for a single county election, the candidate shall not lend to his or her campaign or controlled committee any amount in excess of twenty thousand dollars ($20,000.). (Ords. 97- § 8; 95-8) 3 1) , 3 SECTION IX. Section 530-2.707 is amended to read: 530-2.707 Voluntary expenditure limits (a) Statement accepting expenditure ceiling. All candidates who adopt the expenditure ceiling specified in subsection(c) may accept contributions in the amounts specified in section 530-2.703, subsection(b) and section 530-2.704, subsection(b). All iecail candidates who adopt the expenditate ceiling specified in subsection(c) may accept contributions in the Mnounts specified insection 530-2.703 530-2.,704 All candidates who adopt the expenditure ceiling specified in subsection(c) may loan their campaigns money up to the amount specified in section 530-2.706, subsection (b). Before accepting any contributions or making any loans between five thousand dollars and the amounts specified in sections 530-2.703, subsections (b) mid(c), 530-2.704, subsections(b)and (c), and 530-2.706, subsection (b), a candidate for a primary, general, or recall election must file with the County Clerk-election division a statement, signed under penalty of perjury,which states that the candidate adopts the expenditure ceiling specified in subsection(c)below. (b) Time for filing statement adopting expenditure ceiling. The statement may be filed by a candidate, other than a recall candidate, at any time after that date which is twelve months before the date of the primary election for the office and until such time as the candidate files his or her declaration of candidacy. In the event the candidate is not elected to office in the primary election, enters the runoff election, and wishes to adopt the expenditure ceiling fbi the,cicction cycle for the general election, the candidate must file a separate statement. Such statement may be filed at any time after the primary election results are final until thirty days prior to the general election. A recall candidate may file the statement adopting the expenditure-ceiling at any time after the date the recall measure is certified for the ballot until thirty days before the recall election. (c) Amount of expenditure ceiling. Fr an election cycle, candidates who agree to accept the voluntary expenditure ceiling shall not incur campaign expenditures exceeding eighty thousand dollars($80,000), except as set forth in subsection,5(d), (e) and (f) below. (d) Contributions from individuals. For an election cycle, a candidate who accepts the voluntary expenditure ceiling and who raises twenty percent of the amount of that ceiling in contributions of one hundred dollars($100) or less from individuals residing in the supervisorial district in which the candidate stands for election, may incur ten thousand dollars ($10,000) in campaign expenditures in addition to that amount permitted in subsection(c). (e) Candidate whose opponent does not adopt ceiling. For an election, for a candidate who accepts the voluntary expenditure ceiling and whose opponent or opponents do not accent the expenditure ceiling, the amount of the voluntary expenditure ceiling_specified in subsection (c ) shall increase by ten thousand dollars($10.000) each time the opponent or opponents not accepting the ceiling either receive cumulative contributions of ten thousand dollars ($10,000) or make cumulative expenditures often thousand dollars ($10.000.) For purposes of determining 4 whether the ten thousand dollar threshold for cumulative contributions is reached. the contributions received by all opponents not accenting the limits shall be added topether. For purposes of determining whether the ten thousand dollar threshold for cumulative expenditures is reached, the expenditures of all nPnhall be added together To be eligible for a ten thousand dollar increase in the ceiling the candidate must have rece;ved disclosures pursuant to subsection(I)which show either cumulative contributions of ten thousand dollars($10.000)by an 41212onent or opponents who did not accept the ceiling or cumulative Menditures of ten thousand dollars Is10 000)by such opponent or opponents Each subsequent increase in the ceiling must be based on amounts disclosed p�nt to subsection(i) which were not counted for purposes of anv previous increase in the ceiling_ (f Independent expenditures against candidate or on behalf of candidate's opponent For an election, for a candidate who accepts the voluntary expenditure ceiling, the amount of the voluntary expenditure ceiling_specified in subsection(c)Aall increase by ten thousand dollars ($10-000) each time-a committee or committees make independent expenditures opposing the candidate or sup, orting_his or her opponent(s) in the cumulative amount of ten thousand dollars ($10,000) or receive cumulative contributions in the amount of ten thousand dollars 10.000._ For purposes of determining whether the ten thousand dollar threshold for cumulative contributions is reached the contributions received by all committees making independent expenditures for or against a candidate shall be added together For purposes of determining whether the ten thousand dollar threshold for cumulatim independent expenditures is reached, the independent expenditures of all such committees shall be added together. To be eligible for a ten thousand dollar increase in the ceiling the candidate must have received disclosures pursuant to subsection(j)which show either cumulative contributions of ten thousand dollars ($10.0001 by the committee or committees or cumulative independent expenditures of ten thousand dollars ($10.000)by the committee or committees Each subsequent ten thousand dollar increase in the ceiling must be based on amounts disclosed pursuant to subsection j) which were not counted for purposes of aniprevious increase in the ceiling. (g)Notwithstanding subsections (d) (e) and(f), the amount of the voluntary expenditure ceiling shall not exceed one hundred and sixty thousand dollars ($160.000) in any event. Notification by candidate who exceeds ceiling. A candidate, other than a candidate who has accepted the voluntary expenditure ceiling and has qualified to incur additional campaign expenditures as specified in subsections(d)-1e or(fl, who receives aggregate contributions exceeding the amount of the expenditure ceiling specified in subsection (c) shall notify the County Clerk-election division both by telephone and guaranteed overnight mail on the day such contributions exceeding that amount are received. A candidate, other than a candidate who has accepted the voluntary expenditure ceiling and has qualified to incur additional campaign expenditures as specified in subsections(d). (e) or(f), who makes aggregate expenditures exceeding the amount of the expenditure ceiling specified in subsection (c) shall notify the County Clerk-election division both by telephone and guaranteed overnight mail on the day such expenditures exceeding that amount are made. A candidate who has accepted the voluntary 5 D, 3 expenditure ceiling and has qualified to incur additional campaign expenditures as specified in subsectionjkd),ke . or(fl, who receives aggregate contributions exceeding the amount of the respective ceiling specified in subsection. (�d)(,e_l. or(fl shall notify the County Clerk-election division both by telephone and guaranteed overnight mail on the day such contributions exceeding that amount are received. A candidate who has accepted the voluntary expenditure ceiling and has qualified to incur additional campaign expenditures as specified in subsection, (0 or or who makes aggregate expenditures exceeding the amount of the respective ceiling specified in subsections(d). (ee) or(fl shall notify the County Clerk-election division both by telephone and guaranteed overnight mail on the day such expenditures exceeding that amount are made. If the day on which notice is required is not a business day, notice shall be given on the next business day. (i)Notification by candidate who has not adopted voluntarygxpenditure ceiling. During the period which is more than twenty(20days,prior to the election.-a candidate who has not adopted the voluntary expenditure ceiling shall notify the County Clerk-election division and all opponents running for the same seat, within 72 hours whenever the candidate has either received cumulative contributions, or made cumulative expenditures of ten thousand dollars($10.000). twenty thousand dollars($20-000), thirty thousand dollars ($30,000) and so on in multiples of ten thousand The notification shall state either that the candidate has received cumulative contributions-or has made cumulative expenditures of ten thousand dollars ($10.000)and so on in multiples of ten thousand During the period which is twenty days or less before the election a candidate who has not adopted the voluntary expenditure ceiling shallnoti the CountyClerk- election division and all opponents running for the same seat, within 24 hours whenever the candidate has either received cumulative contributions, or made cumulative expenditures of three thousand dollars ($3,000), six thousand dollars ($6,000), nine thousand dollars($9.000) and so on in multiples of three thousand The notification shall state that the candidate either has received Cumulative contributions or has made cumulative contributions of three thousand dollars ($3,000) and so on in multiples of three thousand Whenever the candidate has either received contributions or made expenditures in a threshold amount ($10,000 or$3,000); the candidate shall disclose the item(either contributions or expenditures) for which the threshold was reached. but not the other item When the same threshold is reached for the item not disclosed. the candidate shall not have to disclose that item. All notifications shall be made by facsimile transmission or guaranteed overnight mail. (1)Notification by committee making independent expenditures During the period which is more than twenty(20)days prior to the election. any committee which makes independent expenditures in support of or in opposition to any candidate for supervisorial office shall notify the County Clerk-election division and all opponents running for the same seat. within 72 hours whenever the committee has either received cumulative contributions. or made cumulative expenditures of ten thousand dollars($10,000). twenty thousand dollars($20.000 . thirty thousand dollars($30,000) and so on in multiples of ten thousand. The notification shall state either that the committee has received cumulative contributions. or has made cumulative 6 Menditures of ten thousand dollars($10-000) and so on in multiples of ten thousand. During the period which is twenty days or less before the election a committee making independent " �nenditures for or against ssupervis rial candidates shall notify the County Clerk-election division and 1 opponents running for the same seat within 24 hours whenever the committee has either received cumulative contributions or made cumulative expenditures of three thousand dollars ($3,000.), six thousand dollars ($6.000)- nine thousand dollars ($9.000) and so on in multiples of three thousand dollars($3,000 The notification shall state that the committee either has received cumulative contributions or has made cumulative contributions of three thousand dollars ($3,000) and so on in multiples of three thousand Whenever the committee has either receive contributions or made expenditures in a threshold amount ($10,000 or.$3.000). the committee shall disclose the item(either contributions or expenditures)for which the threshold was reached but not the other item When the same threshold is reached for the item not disclosed,the committee shall not have to disclose that item For purposes of this subsection. "cumulative contributions" as used herein means all contributions received as to adv supervisorial candidate. As used in this subsection, "cumulative expenditures" means all expenditures made as to any pervisorial candidate All notifications shall be made by facsimile transmission or guaranteed overnight mail. (W Exclusions. For purposes of this Article, expenditures(see California Government Code section 82025) subject to the expenditure ceiling do not include: (1) expenditures for campaigns for other offices; (2) expenditures for campaigns for the office of Supervisor which occurred prior to the effective date of this ordinance; (3) expenditures for office holder expenses. "Office holder expenses" means those expenditures arising out of the office holder's official duties which directly assist the office holder in performing his official duties, or which directly relate to a governmental purpose. "Office holder expenses" include but are not limited to, (a) donations to charitable organizations; (b)the cost of tickets to political events; ®the cost of postage, office supplies, stationary and similar expenses related to the conduct or performance of the office holder's governmental duties; (d) reasonable expenses for travel to conferences, seminars, educational events and similar activities related to the office holder's position; (e)the cost of books or publications reasonably related to the office holder's position; (f) litigation expenses related to the office holder's actions as a supervisor. The expenses listed in items(a)through(f) shall not be considered"office holder expenses" if they are used in connection with any office holder's campaign for a future term of office as a Supervisor. (4) Repayment of debt itself during the ninety day period following the election. (1)Adoption of expenditure ceiling irrevocable. A candidate who adopts the expenditure ceiling for the a particular primary election, may not thereafter revoke his or her adoption of the expenditure ceiling as to that election cycle. A candidate who is not elected to office in the primary election, enters the runoff election, and adopts the expenditure ceiling for election cycle a, to he general election, may not thereafter revoke his or her adoption of the expenditure ceiling as to that election cycle. 7 D . 3 ceiling fbi the election cycle during which the expendittzi e is Made, i egat dies., of the put pose of the . (Ords. 97- § 9; 96-24; 95-47; 95-35; 95-8.) SECTION X. Section 530-2.710 is amended to read- 530-2,710 ead:530-2 7 0 Contributions cumulated. For a single election cycle if an individual, committee, or small contributor committee contributes at least one hundred dollars to a candidate who has adopted the voluntary expenditure ceiling specified in section 530-2.707, then the cumulative amount of any contributions to that candidate and contributions to independent expenditure committees on behalf of that candidate, or in opposition to that candidate's opponents. made by such individual or committee shall not exceed five hundred dollars($500), and in the case of small contributor committees shall not exceed one thousand dollars($1,000).- For a single election. if an individual. committee, or small contributor committee contributes at least one hundred dollars to a candidate who has not accepted the voluntary expenditure ceiling defined in section 530-2,707- then the cumulative amount of any contributions to that candidate and contributions to independent expenditure committees on behalf of that candidate, or in opposition to that candidate's gpponents, made by such individual or committee shall not exceed two hundred and fifty dollars X250), and in the case of small contributor committees shall not exceed five hundred dollars ($500.) (Ords. 97- §10; 95-8.) SECTION XI. Section 530-2.712 is added to read: 530-2.712. Debate by Mail. (a)Participation by candidates. Any supervisorial candidate may participate in the Debate by Mail. For each of three debates by mail- a participating candidate may submit to the CountX clerk-election division a separate statement which addresses that candidate's views on the issues and Qualifications for office. The statement shall not include any references to the candidate's opponent(s). A candidate may choose how many debates, if any, in which he or she will participate. Mailing and Notification by County Clerk. In the six weeks preceding an election, the County Clerk will send out three separate debate mailings for participating candidates For each debate by mail, the County Clerk wi11 provide written notice to all declared supervisorial candidates of the date for submission of statements of the challenge period for that submission. and of the date on which that submission will be mailed For each debate by mail the Count Clerk shall designate a filing fee not to exceed $200 per statement. (c ) Challenge period. Any person may challenge a candidate's statement on the basis that it makes references to the candidate's opponent s). For each debate by mail, the challengeep riod will be five work days after the final date for submission of statements If any person files a civil 8 DI 3 action to prevent mailing_of a can i od. mailing of that statement shall be suspended subject to any order made by the Superior Court (d) Method of mailing For each debate by mail the County Clerk shall request approval from a utility company such as Pacific Gas and Electric or Pacific Bell or from the Tax Collector to include the debate materials with the utility hills or tax bills The utility or Tax Collector may do only one debate mailing per election If a utility or the Tax Collector agrees to mail the debate materials, the County Clerk shall have the discretion to permit the utility or Tax Collector to sen the debate materials to only those persons on the list of registered voters If none of these entities approve the request the County Clerk shall send the debate materials to those persons on the list of registered voters For each debate by mail when the County Clerk sends the debate materials. in the case of multi voter households, he shall mail only one set of debate materials per household. (�1 Form of statement Each participating candidate shall submit one page of camera- ready.- black and white copy w, hich may include photographs by the submission date designated by the County Clerk pursuant to subsection(b) For each debate. the County Clerk shall designate the sizefh ih candidates may-submit, Whenever practical, the sizeof the hll be ei,ght and one-half by eleven inches. (f) The mailing date for each of the three separate Debates by Mail shall be twenty days ten days and five days respectively before the election. In the event that the County Clerk's _request to send the ,rebate materials with utility bills or tax bills is accepted as to a particular mailing for an election. the County Clerk shall decide which of the mailing dates established in this subsection is closest in time to the actual mailing by the utility or Tax Collector and shall omit that established mailing date for that election. (g) The County Clerk shall adopt regulations to provide for a statement to be printed on the debate materials specifying that the County did not prepare the materials and is not responsible for their content. (Ord. 97- § 11.) SECTION XII. Section 530-2.902 is amended to read: 530-2.902 Disclosure of contributors required. Any committee that makes, during the calendar year in which the election is held, more than five thousand dollars($5,000.)in independent expenditures for or against a candidate for county office or for or against the qualification of, or passage of a local ballot measure being voted on only in this county shall list the following information in a clear and legible manner on the bottom one-third of the front page of any mass mailing(delivered by any means including hand delivery)by the committee in the election for which the independent expenditures were made. (1) The names and occupations of individuals and the names and business interests 9 D . of non-individuals, of the five largest contributors to the committee during the twelve months preceding the most recently passed campaign reporting period listed in order of the amount of contributions(except that no contributor with cumulative contributions of less than one hundred dollars $100) need be listed). If two or more of the largest contributors have contributed the same amount they shall be listed according-to chronological sequence of contribution The disclosure shall read: "Major funding by: (name and occupation or business interest):. In the case of contributions from committees, the disclosure shall read: "Major funding by: (name of committee); Expenditures directed by: (name and occupation or business interest of persons or non-individuals who direct or control the expenditures of the committee)"; and (2) If the committee has received at least one third of its total contributions during the twelvemonths preceding the most recently passed campaign reporting period from large out- of-county contributor(s), the top one-third of the disclosure shall state"Major funding from large out-of-county contributors." "Large out-of-county contributors" means a)those contributors who either are not residents of the county or do not have a principal place of business in the county and b) whose cumulative contributions to the committee are $250 or more for the twelve month period preceding the most recently passed campaign reporting period. fbl When making the disclosures required in subsection a). the committee must use the same type size for all words in the disclosure Thetype size used must be Large enough that the disclosures required in subsection(a) cover as-much of the bottom one-third of the front page o the mass mailing as is reasonably possible The committee must list each contributor on a new line No matter haw many contributors must be listed the committee must use as much of A,- available space on the bottom one third of the frontage of the mass mailing a is reasonably possible The committee shall use the bottom one-third of the firs1age of the mass mailing, for the purpose of making the disclosure required in subsectio nn(a) This section does not apply to communications from an organization to its members. (Ord. 97- § 12; 95-8.) SECTION III. Section 530-2.904 is added to read: 530-2.904 Disclosure of Paid Telephone Banks W m committee that makes during_the calendar vear in which the election is held, more than five thousand dollars($5,000 in independent expenditures for or ag i�st a candidate for county office or for or against the qualification of, or passage of a local ballot me s ire being vied on only in this county and which pays persons to operate a telephone bink for or against a candidatefor county offimr for or against thelift i n or passage of 1 Intr shall assure that thealp id telephone bank callers make the followingis 1 s "rgs in each tele hone (1) The names and occupations of individuals and he name and business interests of non-individuals, of the two largest contributors to the c mmittee during the twelve months preceding the most recently passed campaijan reportingl2erio listed in order of the amount of contributions (except that no contributor,with cumulative contributions of less than one hundred dollars($100) need be listed ) If the two largest contributors have contributed the same amount 10 D 3 they shall be mentioned d according�ta chronological sequence of contribution The paid telephone caller shall state: "Funding for this call provided by: (name and occupation or business interest In the case of contributions frQm committees the paid telephone caller shall state: "funding,for this call provided byname of committee).;Exlenditures directed by: (name and occupation or business interest of persons or non-individuals who direct or controls the expenditures of the committee)": and (2) If the committee has received at_least one third of its total contributions daring the twelve months precedingthe most recently-passed campaign reporting period from large out- of-county contributor(s). the paid telephone caller also shill state "Funding for this call was provided-4 large out of county contributors." "Large out-of-county contributors" shall have the me ning..speci fled in section 530.!2-902 subsection(al_,(2I (b,)The 12aid telephone caller shall begin n th di cl in s�ahs;cti!2n (a)in the rst thin- 30) seconds-of the telephone call (-q)-For 12u[poses of this section- "c ing_period" inc udes the reporting of contributions and in&,12endent expenditures at the times specified in section 530-2,707 subsections (i and (i). (d) This section shall not apply when an in ependent P penditure committee pays for telephone eauinment and bills but uses volunteQrs to make the telephone bank cells (Ord. 97- §13.) SECTION XIV. EFFECTIVE DATE, This ordinance becomes effective 30 days after passage, and within 15 days after passage shall be published once with the names of supervisors voting for and against it in the a newspaper published in this County. PASSED ON by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: PHIL BATCHELOR, clerk of the Board and County Administrator By: 11 Doi Deputy Board Chair t [SEAL) A:\DEBT-1.WPD 12 ek*ba. "tcard Gary T.Yancey District Attorney OFFICE OF THE DISTRICT ATTORNEY COUNTY OF CONTRA COSTA TO: Mary Ann Mason Deputy County Counsel FROM: James L. Sepulveda Deputy District Attorney DATE: December 2, 1996 SUBJECT: Draft Amendments to County Election Campaign Ordinance I received the draft amendments to the County Election Campaign Ordinance late in the afternoon on Wednesday,November 27th. I reviewed the proposed amendments over the weekend and, based upon my limited review, I have the following comments: 1. Proposed changes to section 530-2.703 do not completely conform to Proposition 208. The Proposition exempts contributions from candidates, small contributor committees and political parties from the most restrictive contribution limits. Our ordinance makes no reference to political parties. Is this intentional? 2. Unless I have missed it, I see no similar provision to section 530-2.705 in the language of Proposition 208. If I am correct, then the ordinance is more lenient than the Proposition. Per section 85706 of the Proposition, local restrictions cannot be more lenient unless authorized by a vote of the people. _ 3. It is my opinion that the proposed section 530-2.712 (debate by mail) is blatantly unconstitutional. Who is going to pick the debate topics? The very selection of the topics may prevent an individual candidate from addressing the issues that candidate deems the most important. In addition, the provision limiting what a candidate can say about an opponent is clearly a prior restraint on free speech. Ignoring the very real issue of public financing for a moment,this provision authorizes the government to assist a candidate's campaign but only if the candidate discusses certain selected issues and does not mention the opponent. If that is not a First Amendment violation, I have never seen one!! 4. Proposed section 530-2.902 has a threshold limit of$5,000 before the section becomes applicable. However, Proposition 208 seems to have a zero dollar limit for-similar restrictions to become effective against candidates. See section 84506. Therefore, this section appears to more restrictive relative to ballot measures (Proposition 208 has a$50,000 threshold for ballot measures) but less restrictive relative to candidates. Once again, per section 85706 of the 'l y z�rT Proposition, local restrictions cannot be more lenient unless authorized by a vote of the people. Also, section 530-2.902 exempts contributors whose cumulative total is less than$100 from ever being listed as a contribution source. I see no similar exemption under Proposition 208. Lastly, subsection(b) of the proposed ordinance seems very unfair. As written, it would require huge type size if only one contributor was listed but correspondingly smaller type size the more contributors that are listed?! I suppose this raises an equal protection argument. It makes much more sense to designate a certain type size for all disclosures. 6. I believe that proposed section 530-2.904 may be constitutionally invalid due to an equal protection violation. I fail to see any rational basis to distinguish between paid and non- paid telephone callers. The purpose of the section is to inform voters of the principal monied interests behind whoever is making the calls. Whether the actual caller is being paid or not seems irrelevant. Under this proposal, a big political spender can rent a hall, pay for all the phone installation, provide lavish meals, provide for transportation to and from the hall, and not be subject to the ordinance. Whereas a candidate who pays a few friends a dollar an hour to reimburse them for their time, uses his own home phone, and provides no meals or transportation, is subject to the ordinance. I do not see a justifiable basis for the distinction. Thank you for your consideration of these matters.