Legal Alerts Sep 12, 2019

Political Reform Act’s Ban on Public Money for Campaigns Upheld

Calif. Appellate Court Strikes Down SB 1107

Political Reform Act’s Ban on Public Money for Campaigns Upheld

A California law that amended the Political Reform Act to permit spending public money on political campaigns was struck down by an appellate court. In Howard Jarvis Taxpayer Assoc., et al. v. Gavin Newsom, Governor, et al., published late last month, the Third District Court of Appeal found that Senate Bill 1107, passed in 2016, was inconsistent with the voter-enacted PRA’s purpose.
 
The court found that the Legislature acted within its boundaries when it amended the PRA. However, the amendment directly contradicted one of the PRA’s significant purposes: prohibiting public financing of political campaigns.
 
SB 1107 amended provisions of the PRA banning the use of public funds on political campaigns to permit it under certain circumstances. SB 1107 provided that a public officer or candidate may expend public money to seek elective office if the state or local government entity establishes a dedicated fund for this purpose, along with meeting other conditions.
 
The Howard Jarvis Taxpayer Association and former state Sen. Quentin Kopp brought suit to invalidate the new law and stop its implementation. The lawsuit argued that SB 1107 constituted an improper legislative amendment of a voter initiative, and its various amending acts — voter-approved propositions over the years since its original enactment in 1974. The lawsuit alternatively argued that, even if the Legislature could amend the PRA, SB 1107 was a prohibited amendment because it conflicted with one of the core purposes of the PRA.
 
The appellate court traced the PRA’s history from its origin as an initiative measure (Proposition 9). As originally enacted, the PRA provided that it could be amended either by a two-thirds vote of the Legislature or by a statute approved by the voters (by way of initiative or referendum). The Legislature has since amended the PRA more than 200 times. Voters have amended it four times: Propositions 68 and 73 in 1988, 208 in 1996 and 34 in 2000. Under the California Constitution, voters may allow or prohibit amendment of a voter-passed initiative, and that includes the power to put conditions on such legislative amendments. Section 81012, an original provision of the PRA, says that the PRA may be amended by the Legislature “to further the purposes” of the PRA.
 
The ban on the use of public monies for political campaigns came into being in 1988 with the approval of Proposition 73, which amended the PRA to provide that “no public officer shall expend and no candidate shall accept any public money for the purpose of seeking elective office.” Of at least historic interest, Proposition 73 shared the ballot with Proposition 68, which permitted the use of public monies for political campaigns. Both received a majority of the votes cast, but Proposition 73 received more votes and was therefore put into effect, while none of  Proposition 68’s provisions were allowed to take effect. The latest voter initiative — 2000’s Proposition 34 — left unchanged section 85300’s ban on public financing of campaigns and added additional provisions limiting use of public money on campaign expenditures and contributions.
 
The Governor and Fair Political Practices Commission argued that SB 1107 was an authorized legislative amendment and that it furthered the PRA’s purposes, as originally stated in section 81001, by shrinking large donors’ influence, reducing campaign spending and incumbency advantages, and giving voice to all citizens — regardless of wealth.
 
The appellate court found that, while SB 1107 did further some of the purposes of the PRA as described in section 81001, it had to look to “the Act as a whole.” The court held that Propositions 73 and 34, in tandem, demonstrated that the ban on use of public money in political campaigns is a “primary mandate of the Act.” The court went on to conclude that SB 1107 would permit the complete repeal of the ban on public financing of election campaigns and, because it removes that key component of the law, it is not an amendment that furthers the PRA’s purpose.
 
If you have any questions about this opinion or how it may impact your agency, please contact the author of this Legal Alert listed to the right in the firm’s Government Policy & Public Integrity practice group, or your BB&K attorney.
 
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