Here - Election Law Blog

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Charles H. Bell, Jr. (SBN 060553)
Thomas W. Hiltachk (SBN 131215)
Jimmie E. Johnson (SBN 223344)
BELL, McANDREWS & HILTACHK, LLP
455 Capitol Mall, Suite 801
Sacramento, California 95814
Telephone: (916) 442-7757
Facsimile: (916) 442-7759
Attorneys for Plaintiffs/Interveners,
ARNOLD SCHWARZENEGGER, GOVERNOR
SCHWAZENEGGER’S CALIFORNIA RECOVERY
TEAM, SENATOR JOHN CAMPBELL, RESCUE
CALIFORNIA FROM BUDGET DEFICITS; and
TAXPAYERS FOR RESPONSIBLE PENSIONS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
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CITIZENS TO SAVE CALIFORNIA, a
Coalition of Business and Taxpayer
Organizations, a California Public Benefit
Corporation; Assembly Member KEITH
RICHMAN, M.D.,
vs.
Plaintiffs,
CALIFORNIA FAIR POLITICAL
PRACTICES COMMISSION; DOES I-X,
inclusive,
Defendants.
ARNOLD SCHWARZENEGGER, Governor,
in his individual capacity; GOVERNOR
SCHWARZENEGGER’S CALIFORNIA
RECOVERY TEAM, a candidate-controlled
political committee,
vs.
Plaintiffs/Interveners,
CALIFORNIA FAIR POLITICAL
PRACTICES COMMISSION; DOES I-X,
inclusive,
Defendants,
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Case No. 05AS00555
PLAINTIFFS/INTERVENERS’ POINTS
AND AUTHORITIES IN SUPPORT OF
PRELIMINARY INJUNCTION
RE:COMPLAINT FOR INJUNCTIVE
AND DECLARATORY RELIEF
Hearing Date: March 2, 2005
Time: 2:00 p.m
Dept: 53
Judge: Hon. Loren McMaster
Complaints in
Intervention Filed: February 14, 2005

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SENATOR JOHN CAMPBELL, State
Senator, in his individual capacity; RESCUE
CALIFORNIA FROM BUDGET DEFICITS, a
recipient campaign committee; TAXPAYERS
FOR RESPONSIBLE PENSIONS, a recipient
campaign committee,
vs.
Plaintiffs/Interveners,
CALIFORNIA FAIR POLITICAL
PRACTICES COMMISSION; DOES I-X,
inclusive,
Defendants,
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POINTS AND AUTHORITIES IN SUPPORT OF PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .....................................................
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INTRODUCTION ............................................................. 1
HISTORICAL BACKGROUND .................................................. 2
ARGUMENT ................................................................. 4
I. DEFENDANT FAIR POLITICAL PRACTICES COMMISSION LACKED
STATUTORY AUTHORITY TO ADOPT SECTION 18530.9
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A. Government Code section 85301 Does Not Limit Contributions that May
Be Received by a Candidate Controlled Ballot Measure Committee. It
Merely Limits Contributions that a Candidate Can Receive for His or Her
Candidacy ................................................. 4
B. No legislative history supports the FPPC’s interpretation of section 85301
and in fact that history supports the opposite conclusion ............. 8
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II.
C. The FPPC’s Interpretation of the PRA and Its Adoption of Regulation
18530.9 Is Entitled to No Judicial Deference ..................... 10
SECTION 18530.9 VIOLATES THE RIGHT OF ASSOCIATION AND
EXPRESSION PROTECTED BY THE FIRST AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ART. I, SEC. 2 AND 3 OF THE CALIFORNIA CONSTITUTION ......... 11
A. The FPPC’s tortured interpretation of section 85301 and Regulation
18530.9 invites constitutional questions ......................... 11
B. Regulation 18530.9 Violates the State and Federal Constitutional
Guarantees of Free Speech and Petition ......................... 12
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CONCLUSION .............................................................. 15
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POINTS AND AUTHORITIES IN SUPPORT OF PRELIMINARY INJUNCTION
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TABLE OF AUTHORITIES
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FEDERAL CASES
Buckley v. Valeo (1976) 424 U.S. 1 .................................................................................... 6, 12, 13
C & C Plywood Corp. V. Hanson (9 th Cir. 1978) 583 F.2d 421 ................................................... 13
California Prolife Council v. Scully (E.D. Cal. 1988) 989 F.Supp. 1282 ...................................... 8
Citizens Against Rent Control v. Berkeley (1981) 454 U.S. 290, 295-96 ............... 6, 12, 13, 14, 15
First National Bank of Boston v. Bellotti (1978) 435 U.S. 765 .................................................... 13
Let’s Help Florida v. McCrary (5 th Cir. 1980) 621 F.2d 195 ....................................................... 13
CALIFORNIA CASES
Bodinson Mfg. Co. v. California Emp. Com. (1941) 17 Cal.2d 321 ............................................. 10
Brewer v. Patel (1993) 20 Cal.App.4th 1017 ............................................................................... 11
Californians for Political Reform Foundation v. Fair Political Practices Commission
(1998) 61 Cal.App.4th 472 ...................................................................................................... 11
Esberg v. Union Oil Co. (2002) 28 Cal.4th 262 ............................................................................. 5
Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal.3d 35 ........................................... 11
Parsons Brinckerhoff Quade & Douglas, Inc. v. Kern County Employees Retirement Assn.
(1992) 5 Cal.App.4th 1264 ...................................................................................................... 12
Spanish Speaking Citizens’ Foundation, Inc. v. Low (2000) 85 Cal.App.4th 1179 ..................... 11
Wax v. California Fair Political Practices Commission (E.D. 1990)
Case No. CIVS 90-1232-LKK-JFM .......................................................................................... 2
CALIFORNIA CODES
California Code of Regulations:
§ 18530 .......................................................................................................................... 1, 11, 12, 15
§ 18538 ............................................................................................................................................ 2
Elections Code:
§ 18680 ............................................................................................................................................ 7
Government Code:
§ 85200 ............................................................................................................................................ 6
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§ 85202 ............................................................................................................................................ 6
§ 85206 ............................................................................................................................................ 6
§ 83111 .................................................................................................................................... 11, 15
§ 83112 ............................................................................................................................................ 4
§ 83501 .......................................................................................................................................... 10
§ 85300 ........................................................................................................................................ 4, 6
§ 85301 .................................................................................................................. 1, 3, 5, 6, 7, 8, 11
§ 85302 ............................................................................................................................................ 5
§ 85303 ............................................................................................................................................ 6
§ 85310 ........................................................................................................................................ 6, 7
§ 89510 ............................................................................................................................................ 7
OTHER SOURCES
Cal.Const., art. I, § 2 ..................................................................................................................... 12
Cal.Const., art. I, § 3 ..................................................................................................................... 12
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POINTS AND AUTHORITIES IN SUPPORT OF PRELIMINARY INJUNCTION
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INTRODUCTION
Plaintiffs/Interveners join the Plaintiffs herein in seeking to enjoin enforcement of a
regulation of the Fair Political Practices Commission (“FPPC”). The Regulation (Title 2
California Code of Regulations section 18530.9) was passed without any statutory authority and
is unconstitutional on its face. Three years after the enactment of Proposition 34, the FPPC
reversed its prior interpretation that a straight-forward and common-sense reading of Government
Code section 85301 imposing contribution limits on candidates seeking specified elective offices
did not impose limits on a ballot measure committee controlled by a candidate. While the FPPC’s
policy justification for changing its mind is debatable, it is also irrelevant, because the FPPC has
no policymaking authority beyond its governing statutes.
In fact, as discussed more fully below, the People and the Legislature enacted a
comprehensive regulatory scheme - one that imposed contribution limits on candidates seeking
elective office (the limit being based on the particular office sought and on a per election basis);
eschewed limits on contributions to ballot measure committees (as constitutionally required); and
adopted a narrowly tailored contribution limitation on ballot measure committees perceived to be
promoting a candidate by featuring the candidate in advertisements 45 days before an election at
which he or she appears on the ballot.
The FPPC simply concluded that after three years, these provisions did not go far enough -
so it adopted its regulation, ignoring this statutory scheme, in favor of its own determination of
public policy. The Legislature and the People are vested with policy making authority, and on
this issue they have already spoken. Indeed, the Legislature’s failed attempt in the 2003-2004
legislative session to enact AB 1980 (Wolk) that would have established legislative authority for
Regulation 18530.9, drives a nail in the coffin of the FPPC’s post-hoc rationalization of this
regulation.
For these reasons, articulated in detail herein, the Court should invalidate the regulation on
lack of statutory authority grounds. The Court need not reach the constitutional question that
hangs like a cloud over the entire case.
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HISTORICAL BACKGROUND
Candidate involvement with ballot measures and issues is not new. It is the lore of
American and California history. Indeed, it was Hiram Johnson, a Governor and former Senator,
who introduced the initiative, referendum and recall to break the shackles of special interests
around the collar of California government in the early 1900s. From that day forward to the
present -- including Interveners Governor Schwarzenegger and Senator Campbell -- candidates
for state and local offices have been the standard bearers of proposed popular reforms. 1
Ironically, the Political Reform Act (“PRA”) itself, was drafted and co-sponsored by then-
Secretary of State Jerry Brown in 1974.
In 1990, Defendant FPPC began to target the connection between candidates and ballot
measures with controversial regulatory actions. The FPPC’s first foray into this issue was its
adoption of two regulations that year: Title 2 section 18538, which imposed limits on
contributions to any ballot measure committee that “featured” a candidate in an advertisement
during the run-up to any election at which the candidate appeared on the ballot; and Title 2
section 18538.2, which regulated candidates being featured in other candidates’ communications.
Both regulations were struck down by the United States District Court for the Eastern District in
Wax v. California Fair Political Practices Commission, (E.D. Cal 1990) Case No. CIVS 90-1232-
LKK-JFM. (Intervener’s Request for Judicial Notice, Ex. A.)
In 1996, the People of California adopted Proposition 208, an amendment to the PRA.
After the ballot measure passed, the FPPC again attempted to regulate candidate-controlled ballot
measure committees. In the Kopp Advice Letter, A-97-390, the FPPC staff advised then-State
Senator Quentin Kopp that contributions to a candidate-controlled ballot measure committee were
subject to the same limits Proposition 208 imposed upon contributions to a candidate’s personal
(re)election committee. However, the Commissioners of Defendant FPPC overruled its staff,
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1 In fact, many measures presented to the voters derive from Legislation proposed by “candidates.” Legislative
proposals to amend our state Constitution, propose the issuance of bonded debt for particular programs, or amendments
to prior enacted measures (e.g., Proposition 34 at issue here) are therefore connected to an identifiable
candidate/officeholder.
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finding no statutory authority for the regulation, and rescinded the original Kopp Advice Letter
with Kopp Advice Letter A-97-390a. (Intervener’s Request for Judicial Notice, Ex. B.)
In 2000, the People of California passed another amendment to the PRA, Proposition 34.
After the ballot measure passed, Dave Bauer, a campaign treasurer, on behalf of State Senator
Tom McClintock, requested an advice letter from Defendant FPPC concerning whether
Proposition 34 imposed contribution limits on candidate-controlled ballot measure committees.
In the Bauer Advice Letter, No. A-03-292 , the FPPC advised Bauer and State Senator
McClintock that “[t]he contribution limits of section 85301 generally do not apply to
contributions made to Tom McClintock’s Committee to Stop the Car Tax, because those limits do
not apply to ballot measure committees.” (Plaintiff’s Request for Judicial Notice, Ex. H.) (See
also, Harrison Advice Letter, No. A-03-201, Plaintiff’s Request for Judicial Notice, Ex. I.)
In 2003, California experienced its historical recall of sitting-Governor Gray Davis, and
the election of Governor Arnold Schwarzenegger. Following his election, Governor
Schwarzenegger and several legislators proposed an amendment to our state Constitution and a
bond measure to deal with an inherited budget crisis. These legislative proposals became
Propositions 57 and 58 and were presented to the voters at the March 2004 primary election.
(Declaration of Thomas Hiltachk 3.)
In order to promote the passage of these two critical ballot measures, Governor
Schwarzenegger formed a candidate-controlled ballot measure committee, named Governor
Schwarzenegger’s California Recovery Team (“CRT”). (Declaration of Thomas Hiltachk 4.)
Based on a straight-forward reading of the PRA and the FPPC’s prior advice, CRT and the
Governor raised contributions without limitation for the campaign to pass Propositions 57 and 58.
(Declaration of Thomas Hiltachk 5.)
At the same time, the Governor was also raising funds for a proposed initiative measure to
reform California’s troubled worker’s compensation system. Ultimately, no initiative was
qualified for the ballot since the Governor and the Legislature were able to reach a legislative
solution. (Declaration of Thomas Hiltachk 5.)
Shortly thereafter, the FPPC commenced deliberations on what would ultimately become
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regulation 18530.9. The Governor, through his counsel, filed a written opposition to the FPPC’s
proposed adoption of the regulation, citing both legal and practical problems with the proposed
regulation. (Interveners’ Request for Judicial Notice, Ex. C.) The Governor, through his
counsel, also testified in opposition to the adoption of Regulation 18530.9 at the Defendant
FPPC’s meeting at which the regulation was adopted. (Declaration of Thomas Hiltachk 7;
Plaintiff’s Request for Judicial Notice, Ex. 3.)
The FPPC adopted the regulation, but decided to postpone its operation until after the
November 2004 general election. Now, Governor Schwarzenegger has proposed a bold reform
agenda, outlined in his “State of the State” address. Since much of that agenda will require
changes to our State Constitution, he will be required to promote his vision for California and to
ask Californians for their vote. (Declaration of Thomas Hiltachk 12.) Under Regulation
18530.9, he and other candidates for state elective office, such as Senator Campbell, are presented
with two choices: (1) either agree to promote their ideas using funds raised under contribution
limits (even though the special interests opposed to those ideas are not subject to any contribution
limit); or (2) hope that someone else picks up the mantel and promotes their ideas in their stead.
Proposition 34 never proposed or contemplated such a “Hobson’s choice.”
ARGUMENT
I. DEFENDANT FAIR POLITICAL PRACTICES COMMISSION LACKED
STATUTORY AUTHORITY TO ADOPT SECTION 18530.9
A. Government Code section 85301 Does Not Limit Contributions that May Be
Received by a Candidate Controlled Ballot Measure Committee. It Merely Limits
Contributions that a Candidate Can Receive for His or Her Candidacy.
On June 4, 1974, the people of California passed the Political Reform Act of 1974, a
state-wide ballot measure. Among many other things, the Act established the Defendant FPPC.
(See Government Code sections 83100, et seq.) The PRA specifically provides that the FPPC
may adopt rules and regulations, however it further states that such regulations “shall be
consistent with this title and other applicable law.” (Gov. Code § 83112.) As such, any regulation
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adopted by Defendant FPPC must be rooted in some authority found within the PRA. 2 Here, the
FPPC relies upon Government Code sections 85301 and 85302 as authority for Regulation
18630.9.
For all purposes relative to the instant case, the two sections are identical. Section 85301
establishes contribution limits from persons, while section 85302 establishes contribution limits
from small contributor committees. These sections only differ in the amounts the two different
types of contributors may donate to the same type of candidate. Therefore, a discussion of only
one section, section 85301, is necessary.
Government Code section 85301 reads in full:
(a) A person, other than a small contributor committee or political party
committee, may not make to any candidate for elective state office other than a
candidate for statewide elective office, and a candidate for elective state office
other than a candidate for statewide elective office may not accept from a person,
any contribution totaling more than three thousand dollars ($3,000) per election.
(b) Except to a candidate for Governor, a person, other than a small contributor
committee or political party committee, may not make to any candidate for
statewide elective office, and except a candidate for Governor, a candidate for
statewide elective office may not accept from a person other than a small
contributor committee or a political party committee, any contribution totaling
more than five thousand dollars ($5,000) per election.
(c) A person, other than a small contributor committee or political party
committee, may not make to any candidate for Governor, and a candidate for
governor may not accept from any person other than a small contributor committee
or political party committee, any contribution totaling more than twenty thousand
dollars ($20,000) per election.
(d) The provisions of this section do not apply to a candidate's contributions of his
or her personal funds to his or her own campaign.
Thus, Government Code Section 85301 imposes a limit on contributions that may be made
to “candidates for” various offices. It is part of an overall contribution limits scheme in the
Political Reform Act, first enacted by the voters in 1988 (Proposition 73), later amended by the
voters in 1996 (Proposition 208), and further amended by the voters in 2000 (Proposition 34).
Before a candidate can accept contributions for his or her candidacy, the candidate must file a
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2 Section 83112 is consistent with hornbook law on the authority of administrative agencies, namely that an
agency has no authority to adopt a regulation that is inconsistent with the statute it seeks to implement. (Esberg v. Union
Oil Co. (2002) 28 Cal.4th 262.)
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“statement of intention to be a candidate” denoting the office sought. (Government Code section
85200.) Upon filing such a statement, the candidate must establish “one campaign contribution
account” from which all campaign expenditures must be made. (See Government Code section
85201.) Government Code sections 85202 through 85206 define certain terms. Section 85300
states that no public funds shall be used “for the purpose of seeking elective office.” Finally,
section 85301 establishes the contribution limits applicable to a candidate for a particular office
(currently $3,300 for state legislative offices; $5,600 for statewide elective offices other than
Governor; and $22,300 for Governor).
Defendants argue that the limits apply to any committee controlled by a candidate, no
matter what the purpose for which the funds are to be used. However, Defendants ignore an
express provision of the PRA which states that such contributions are not limited unless the
committee is using the funds to support or oppose candidates. Government Code section
85303(c) specifically states:
Except as provided in 85310, nothing in this chapter shall limit a person’s
contribution to a committee... provided the contributions are used for purposes
other than making contributions to candidates for elective state office.
Thus, section 85303(c) specifically incorporates the basic concept that contributions to
committees supporting ballot measures or committees making “independent expenditures” for or
against measures and candidates are not subject to limits. This concept in grounded in basic First
Amendment jurisprudence, namely that our United States Supreme Court has held that
contribution limits on ballot measure committees violates the First Amendment (Citizens Against
Rent Control v. Berkeley (CARC) (1981) 454 U.S. 290, 295-96.) and that “independent
expenditures” are also entitled to First Amendment protection (Buckley v. Valeo (1976) 424 U.S.
1, 20-23.). The FPPC simply chose to ignore section 85303(c).
Further, Plaintiffs’ reliance on section 85301 is simply wrong. First, plaintiffs ignore the
broader context of section 85301, namely regulating the conduct of a candidate’s campaign for a
particular office. Indeed, the very text of section 85301(d) conclusively establishes the proper
context. That subdivision states that the limits provisions of section 85301 do not apply to a
“candidate’s contributions of his or her personal funds to his or her campaign.” (Emphasis
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added). Second, the limits are based on a particular office sought, and relate to the number of
voters represented by the office. Thus, section 85301 imposes a lower contribution limit for
legislative offices than it does for statewide offices. Finally, section 85301 establishes limits on a
per election basis. Thus, there is one limit for a primary election and one limit for a general
election. Ballot measures are not presented to voters in multiple elections.
If that is not enough, many other provisions of the PRA establish the proper context for
section 85301. For example, Section 89510 restates that a candidate for elective state office is
subject to the limits found in Chapter 5 (including section 85301) AND requires that those funds
shall be deposited in an account “deemed to be held in trust for expenses associated with the
election of the candidate or for expenses associated with holding office.” 3
Finally, Government Code section 85310 specifically and narrowly addresses the issue of
candidacy promotion using unlimited funds. That section imposes a contribution limit (different
than the limit imposed by section 85301) on a committee, including a ballot measure committee,
that makes a payment of $50,000 or more for “a communication that clearly identifies a candidate
for elective office” that is disseminated with 45 days of an election in which the candidate
appears, if the payment is made “at the behest of the candidate.”
Thus, the Legislature and the voters specifically adopted a different contribution limit on
certain activities of committees, including a candidate controlled ballot measure committee, than
that imposed by section 85301. The FPPC’s regulation, by imposing a lower limit than section
85310, simply removes candidate-controlled ballot measure committees from any possible
application of its limits. There is simply no statutory support for the FPPC’s interpretation of
section 85301.
B. No legislative history supports the FPPC’s interpretation of section 85301 and in
3 In fact the “trust” provision applicable to ballot measure committees is not even found in the PRA, it is found
in the Elections Code. (Elec. Code § 18680)
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fact that history supports the opposite conclusion.
The FPPC’s current interpretation of section 85301 wholly distorts the language of the
statute beyond anything imagined by the voters of California or the proponents of the ballot
measure. Section 85301 was enacted as part of Proposition 34, a statewide ballot measure passed
by the People of California on November 7, 2000. Proposition 34 was placed on the ballot by
Senate Bill 1223 (Burton). The foreward of that legislation reads in pertinent part:
This bill would, among other things, repeal certain amendments made by
Proposition 208 and would reenact provisions that impose similar, but
increased dollar amount limits on campaign contributions for elective state
office, candidate loans, and voluntary campaign spending. This bill would also
add provisions to the act that require certain disclosures in slate mailers, in paid
political advertisements, and in certain issue advocacy communications; authorize
intracandidate transfers of campaign funds and restrict intercandidate
contributions; require the aggregation of certain contributions made by affiliated
entities; expand online or electronic filing requirements with respect to the receipt
of certain contributions and the making of certain independent expenditures; and
prescribe the authorized use of surplus campaign funds. These new provisions, as
to candidates for statewide elective office, would become operative on or after
November 6, 2002. This bill would also make certain technical conforming
changes. .... (Emphasis added.) (Intervener’s Request for Judicial Notice, Ex. D.)
As such, Proposition 34 was an amendment to Proposition 208 in an attempt to cure some of the
potential constitutional infirmities of the previous ballot measure. Proposition 208 placed
limitations upon contributions that an individual or group can make to a candidate. Proposition
34 attempted to quell the constitutional complaints levied against Proposition 208 by raising “the
dollar amount limits on campaign contributions for elective state office.” 4
The contribution limits were only placed upon contributions to candidates for campaigns
involving “elective state office” - not for ballot measure campaigns, or any other type of
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4 One of the alleged constitutional violations committed by Proposition 208 was that the imposed contribution
limits were too low and effectively curtailed all political expression and association. (See California Prolife Council
v. Jan Scully et al. (E.D.Cal.1998) 989 F.Supp. 1282).
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campaign. This sentiment is echoed in the ballot measure summary of the November 2000
general election ballot pamphlet distributed by the Secretary of State prior to the election.
(Plaintiff’s Request for Judicial Notice, Ex. F.) In the “WHAT YOUR VOTE MEANS” section
of the ballot measure summary for Proposition 34, the People of California were advised the
following:
A YES vote on this measure means: New Contribution and voluntary spending
limits will be established for state elective offices. Limits previously adopted by
the voters for state and local offices, which have not been implemented because of
a pending lawsuit, would be repealed. The new limits are higher than those that
would be repealed. ... A NO vote on this measure means: Existing contribution and
voluntary spending limits for state and local elective offices enacted by a voterapproved
initiative would not be repealed. (Emphasis added.)
As stated in this summary, Proposition 34 amended the contribution limits in place at the time
which were placed upon campaigns for “state elective offices.”
The “Analysis of Legislative Analyst” for Proposition 34 within the ballot pamphlet also
confirms the nature of ballot measure as an amendment to contribution limits placed upon “state
elective offices” by Proposition 208. It reads in pertinent part:
Repeals the campaign contribution and voluntary spending limits for state and
local elective offices enacted by Proposition 208. Establishes new contribution
and voluntary spending limits, with higher dollar amounts than those contained in
Proposition 208, for state elective offices. ... This measure repeals the
contribution limits contained in Proposition 208 and replaces them with limits that
are generally higher than those contained in Proposition 208. (Emphasis added.)
Finally, the People of California themselves understood that the contribution limits
proposed by Proposition 34 were an amendment to those created by Proposition 208 and were
intended solely for campaigns involving state elective offices. The following is a passage from
the “Argument in Favor of Proposition 34” section of the ballot pamphlet:
Currently there are no limits on what politicians can collect and spend to get
elected to state office. California is still the wild west when it comes to campaign
fundraising. Six-figure campaign contributions are routine. Proposition 34 finally
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sets enforceable limits and puts voters back in charge of California’s political
process. (Emphasis added.)
Despite all evidence to the contrary, Defendant FPPC maintains that the contribution
limits set forth in Government Code section 83501 cover more than contributions “for elective
state office.” However, nowhere in the text of Proposition 34 is there any mention, or even
allusion to limitations placed upon any type of ballot measure committee, let alone such
candidate-controlled committees. Similarly, nowhere in any of the legislative history or the ballot
pamphlet materials is there any mention, or even allusion to limitations placed upon any type of
ballot measure committee, let alone such candidate-controlled committees.
Void of any evidentiary support, Defendant FPPC rationalizes that “[o]ne could construe
[the limits placed by Government Code section 83501], however, to apply also in the context of
other controlled committees by regarding contributions to such committees as contributions ‘to’
the candidate who holds or seeks elective state office.” (Plaintiff’s Request for Judicial Notice,
Ex. D at p. 8.) This rationalization is nothing more than Defendant FPPC engaging in blatant
word play - stretching, warping, and flipping the text of the PRA beyond its breaking point to
conform with the self-motivated legislative policies of an administrative agency. 5
C. The FPPC’s Interpretation of the PRA and Its Adoption of Regulation 18530.9 Is
Entitled to No Judicial Deference.
Typically, a court must give appropriate deference to an administrative agency’s
interpretation of a statute. (Bodinson Mfg. Co. v. California Emp. Com. (1941) 17 Cal.2d 321,
5 While on the one hand the FPPC claims that a contribution to a candidate-controlled committee is a
contribution to the candidate, the FPPC does not count contributions to a candidate-controlled committee against the
contribution limits to the controlling-candidate’s (re)election committee. If contributions to a candidate-controlled ballot
measure committee were truly controlled by Government Code section 83501, then any amount contributed “to” a
candidate’s ballot measure committee should be deducted from the maximum amount one may contribute “to” a
candidate. There is no “per committee” basis made or alluded to within the section. However, currently, a contributor
may contribute the maximum amount “to” a candidate-controlled ballot measure committee and contribute a second
maximum amount “to” the candidate’s re(election) committee. As such, even the FPPC does not subscribe to its own
assertion that a contribution “to” a candidate-controlled ballot measure committee is a contribution “to” the candidate.
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325; Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal.3d 35, 45; Californians for
Political Reform Foundation v. Fair Political Practices Committee (1998 ) 61 Cal.App.4th 472,
484-485.) However, deference is only called for if the agency has consistently maintained the
interpretation in question, especially if the interpretation is longstanding. A vacillating position,
however, is entitled to no deference. (See, Brewer v. Patel (1993) 20 Cal.App.4th 1017, 1021-22;
Spanish Speaking Citizens’ Foundation, Inc. v. Low (2000) 85 Cal.App.4th 1179, 1215; see also,
The Scope of Judicial Review of Decisions of California Administrative Agencies (1995) U.C.L.A.
Law Review, 42 UCLALR 1157, 1197). In the end, this court must exercise its own independent
judgment when interpreting this statute.
II.
SECTION 18530.9 VIOLATES THE RIGHT OF ASSOCIATION AND
EXPRESSION PROTECTED BY THE FIRST AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. I, SEC.
2 AND 3 OF THE CALIFORNIA CONSTITUTION
A. The FPPC’s tortured interpretation of section 85301 and Regulation 18530.9
invites constitutional questions.
The PRA specifically provides that the Commission “shall take no action to implement
this title that would abridge constitutional guarantees of freedom of speech...” (Gov. Code §
83111.5.) Notwithstanding this prohibition, the FPPC chose to predict the direction of the United
States Supreme Court suggesting that its most recent campaign contribution decision “might one
day be used to justify limits on contributions to at least candidate-controlled ballot measure
committees” in adopting Regulation 18530.9. (Plaintiff’s Request for Judicial Notice, Ex. D at p.
6.)
The role of the court in this case is equally limited. Where there is a need for judicial
construction of a statute because of the “existence of a legitimate reasonable doubt” as to the
meaning and/or scope of its application, “[t]he courts should not espouse an interpretation which
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invites constitutional difficulties.” (Parsons Brinckerhoff Quade & Douglas, Inc. v. Kern County
Employees Retirement Assn. (1992) 5 Cal.App.4th 1264, 1268.) Moreover, the court is bound by
controlling Supreme Court precedent, which in this case conclusively holds that contribution
limits on ballot measure committees are unconstitutional.
B. Regulation 18530.9 Violates the State and Federal Constitutional Guarantees of
Free Speech and Petition.
The regulation places limits upon the amount any person may contribute to a candidatecontrolled
ballot measure committee. A law which sets limitations upon contributions to a ballot
measure committee infringes upon the associational rights protected by the First and Fourteenth
Amendments of the United States Constitution. (See Citizens Against Rent Control v. Berkeley
(CARC) (1981) 454 U.S. 290, 295-96.) 6 Furthermore, “[c]ontributions by individuals to support
concerted action by a committee advocating a position on a ballot measure is beyond question a
very significant form of political expression... [and limitations placed upon political expression] is
always subject to exacting judicial scrutiny.” (See id at p. 298.)
Applying exacting judicial scrutiny in Buckley v. Valeo, supra, 424 U.S. at p. 1, the United
States Supreme Court “identified a single narrow exception to the rule that limits on political
activity were contrary to the First Amendment.” (CARC, supra, 454 U.S. at pp. 296-97.) The
Court found that the prevention of corruption and the perception of corruption was a “sufficiently
important interest,” critical to maintaining public confidence in its government. (See Buckley,
supra, 424 U.S. at 25-27.) The Court then found that the limitations placed upon contributions to
candidates and their controlled (re)election committees was “closely drawn to avoid unnecessary
abridgment of associational (and expressionist) freedoms” because large contributions gave the
6
Regulation 18530.9 also thereby violates Art. I, Sections 2 and 3 of the California Constitution, which
guarantees the right to speak and petition for redress of grievances.
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appearance that these donors wielded improper coercive sway over the recipient candidates who
prevailed in the elections. (See id at p. 25.)
However, this same reasoning was expressly rejected by the United States Supreme Court
in regards to contributions to ballot measure committees. The Court, as well as the Federal
Circuit Courts, have consistently held that the “single narrow exception” recognized in Buckley
did not encompass contributions to ballot measure committees. (See e.g., First National Bank of
Boston v. Bellotti (1978) 435 U.S. 765, 790; CARC, supra, 454 U.S. at pp. 297-300; C & C
Plywood Corp. v. Hanson (9 th Cir. 1978) 583 F.2d 421, 425; Let’s Help Florida v. McCrary (5 th
Cir. 1980) 621 F.2d 195, 199.) The United States Supreme Court unequivocally held, “The risk
of corruption perceived in cases involving candidate elections [] simply is not present in a popular
vote on a public issue.” (See Bellotti, supra, 435 U.S. at p. 790 [quoted by CARC, supra, 454
U.S. at p. 298].)
At the time of both Bellotti and CARC, candidate-controlled ballot measure committees
were already a part of the political landscape. In fact, the United States Supreme Court received
at least two amicus curiae briefs during its consideration of CARC, apprising the Court of the
“danger” of candidate-controlled ballot measure committees if allowed to receive limitless
amounts of contributions. (See Brief in Support of Appellees by Amicus Curiae City and County
of San Francisco, Citizens Against Rent Control v. City of Berkeley (May 27, 1981) 1981 WL
390096, *18 & fn. 6) [warning the Court of the “danger that large contributions in ballot measure
campaigns will be transformed into a political debt;” and “it is not uncommon that the political
fortunes of candidates for, and incumbents of, elective office may rise or fall on the outcome of
[ballot measure] legislation”]; Brief of the City of Santa Monica, California, as Amicus Curiae in
Support of Appellees, Citizens Against Rent Control v. City of Berkeley (July 10, 1981) 1981 WL
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390098, *13 [“Whatever the actual corrupting influence of large contributions on ballot measure
campaigns - we cannot agree that in local elections, where issues and candidates often go handin-hand,
political favors may not be as readily, if somewhat more discreetly obtained by
supporting a candidate’s favorite issue - the perceived potential for economic domination of the
political processes cannot be gainsaid”].)
As such, candidate-controlled ballot measure committees are not a new phenomenon only
emerging after the litany of federal court decisions on the matter. The United States Supreme
Court had ample opportunity to distinguish candidate-controlled ballot measure committees from
non-candidate-controlled committees when it decided the CARC case - a case which dealt with a
local California ballot measure committee. It did not. Rather, the United States Supreme Court
made the sweeping, blanket holding:
Whatever may be the state interest or degree of that interest in regulating and
limiting contributions to or expenditures of a candidate or a candidate’s
committees there is no significant state or public interest in curtailing debate and
discussion of a ballot measure. Placing limits on contributions which in turn limit
expenditures plainly impairs freedom of expression.
(CARC, supra, 454 U.S. at pp. 299-300.)
Therefore, the United States Supreme Court has already determined this matter. Any
limitation upon contributions to a ballot measure committee of any kind is void as violating the
First and Fourteenth Amendments to the United States Constitution. Nothing has changed since
the time of the CARC decision. The Court has not overruled its decision; nor has it undermined
its analysis by newly stating that it finds ballot measure committees (or more specifically
candidate-controlled ballot measure committees) are vulnerable to fostering a perception of
corruption and eroding public confidence in government. Nor are candidate-controlled ballot
measure committees a recent development in contribution limit jurisprudence which the Court has
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not had a chance to analyze. Save a pronouncement by the United States Supreme Court that it
has altered its view of ballot measure committees and their vulnerability to foster a perception of
corruption, the edict of CARC remains the law of the land. Neither the FPPC nor any other
federal, state, or local government entity may substitute its determinations on this matter in the
stead of the United States Supreme Court. Therefore, pursuant to the Court’s decision in CARC,
this court must find California Code of Regulations Title 2, section 18530.9 in violation of the
First and Fourteenth Amendments to the United States Constitution, and void. 7
The simple fact of the matter is that Defendant FPPC is upset about the increasing
amounts of contributions Plaintiff Governor Schwarzenegger and other candidates are raising in
their candidate-controlled ballot measure committees. However, free speech does not lose its
constitutional protection simply because the People exercise it.
CONCLUSION
For the reasons set forth herein, the Court should invalidate Defendant FPPC Regulation
18530.9, and issue appropriate declaratory and injunctive relief to effectuate the invalidation of
this constitutionally-suspect regulation.
Date: February 14, 2005 Respectfully submitted,
BELL, McANDREWS & HILTACHK, LLP
By:________________________________
Charles H. Bell, Jr.
By:
Thomas W. Hiltachk
Attorneys for Plaintiffs in Intervention
7 By taking actions that abridge rights of free speech and equal protection of the laws, the Defendants have
violated Government Code Section 83111.5, which prohibits the Defendant FPPC from engaging in “any” such action.
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ARNOLD SCHWARZENEGGER, GOVERNOR
SCHWAZENEGGER’S CALIFORNIA
RECOVERY TEAM, SENATOR JOHN
CAMPBELL, RESCUE CALIFORNIA FROM
BUDGET DEFICITS and TAXPAYERS FOR
RESPONSIBLE PENSIONS
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