Kopp v. Fair Political Practices Commission

BAXTER, J., Concurring and Dissenting.

I concur in all aspects of parts III. and IV. of the lead opinion. As the lead opinion persuasively reasons, this court is not barred by principles of res judicata, collateral estoppel, or comity from considering whether the constitutionally flawed provisions of Proposition 73 may be reformed. In addition, the lead opinion concludes correctly that a court is under a duty to reform a statute in order to preserve its constitutionality when it can say with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute.

I respectfully dissent, however, from parts V. and VI. of the lead opinion. The lead opinion fails to recognize that, because it may be extremely *686 difficult and burdensome to cure a constitutional defect in an initiative statute, particularly one in which the interests of the people may conflict with the interests of the lawmakers they elect, a court should exert a greater effort to reform such statutes. More fundamentally, it is my view that the relatively minor constitutional flaw discerned by the federal courts in Proposition 73’s use of a “fiscal year” basis for regulating the pace of campaign contributions should not result in the complete invalidation of one of the most important voter-approved election reforms in recent years. Given the fundamental purpose of Proposition 73, there is little doubt the voters who enacted the measure would have preferred slightly different, but constitutionally valid, limits on campaign contributions over the complete elimination of any and all contribution limits. By refusing to implement either of the modest reforms proposed in this case, the lead opinion thwarts the people’s precious right of initiative, and will surely exacerbate the perceived crisis of confidence in our electoral system.

I.

As the lead opinion explains at some length, both the United States Supreme Court and this court have on numerous occasions relied upon various judicial doctrines—including judicial construction of ambiguous statutes in a manner to avoid constitutional questions, the severability doctrine, and judicial reformation—to preserve, to the extent constitutionally possible, legislative measures that otherwise might be invalidated because of constitutional flaws. Judicial reformation of a statute, in a manner that effectuates the intent of the enacting legislative body but eliminates the constitutionally impermissible feature of the statute, accords proper deference to the legislative body’s policy choices and is generally less intrusive upon the legislative domain than the wholesale judicial invalidation of the statute on constitutional grounds, which completely thwarts the accomplishment of the objectives of the legislation.

The foregoing considerations are weighty factors whenever a legislative measure contains a constitutional flaw, but they assume even greater significance when the legislative measure at issue is an initiative measure, enacted by popular vote. When a statute enacted by the Legislature is invalidated, it may be relatively easy for the Legislature to react to the judicial decision, and to enact a new provision that accomplishes the legislative purpose while avoiding the constitutional flaw. When an initiative statute is found to be flawed, however, it may be vastly more difficult and burdensome for the proponents of the statute to undertake the considerable administrative and financial effort to place a new initiative on the ballot in order to cure the constitutional defect. Thus, as a general matter, a court that is concerned *687 about according proper deference to the legislative process should take this difference into account, and should recognize that a greater effort to reform an initiative statute may be more appropriate than invalidating the statute in toto because of the flaw.

I am not suggesting that efforts to reform would be necessary or even desirable with regard to all initiative measures. Elected lawmakers ordinarily will not have a personal stake in the subject matter of initiatives and will not, in general, be in a position that may be “adversary” to their constituents. Thus, in the case of most initiative measures, if a court invalidates a provision of the initiative entirely, elected lawmakers, appreciating the will of the voters, may themselves respond to the court decision and enact a new legislative provision that effectuates the voters’ intent and cures the constitutional defect.

But I strongly believe that reformation is especially, and perhaps even uniquely, appropriate where, as here, the voters’ interest in a particular reform may be adverse to the interests of the lawmakers they elect. In the case of an initiative, like Proposition 73, that imposes limits on the campaign contributions that elected lawmakers can receive, the self-interest of the lawmakers makes it less likely that they will react to a court decision invalidating the initiative’s contribution limits by enacting new contribution limits that effectuate the voters’ goals but eliminate the constitutional flaw.

For the foregoing reasons, I believe the context in which this case arises presents the most compelling circumstance for this court to undertake the effort to reform, rather than invalidate entirely, the constitutionally flawed contribution limits of Proposition 73. Indeed, as a court we are obligated to jealously guard the precious initiative power, and to resolve any reasonable doubts in favor of its exercise. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 341 [ 276 Cal.Rptr. 326 , 801 P.2d 1077 ], and cases cited.) This case, much more so than most others, calls for a liberal construction of the initiative power to promote the democratic process. (Ibid.)

II.

Using the lead opinion’s standard, it is quite possible to reform Proposition 73’s flawed provisions “in a manner that closely effectuates policy judgments clearly articulated by [the electorate].” (See lead opn., ante, at p. 661.) As I shall explain, the campaign contribution provisions may be reformed to closely replicate the fundraising limits as enacted, while eliminating the defective fiscal year restriction.. Although the modest reformation I propose does not (and by logic, cannot) mirror exactly the existing flawed *688 restrictions, it can be concluded with absolute confidence that the voters “would have preferred the reformed construction to invalidation of’ the popularly passed limits on contributions. (See ibid.)

To determine whether Proposition 73’s contribution limits are capable of reformation, we must first ascertain what the voters sought to accomplish in their passage.

Prior to 1988, California law generally did not limit the amount of money that an individual could give in political campaign contributions to candidates for state elective office. Proposition 73, which appeared on the June 1988 ballot, sought to reform the financing of statewide and local political campaigns. In the ballot arguments, the proponents of the initiative expressed their concern that “ [candidates and officeholders can be unduly influenced by special interest groups that donate large amounts of money,” informing the voters that “[contributions of $10,000, $20,000 or $30,000 [were] routine” and that “$100,000 contributions [were] becoming commonplace.” (Ballot Pamp., Proposed Amends, with arguments to voters, Primary Elec. (June 7, 1988) argument in favor of Prop. 73, p. 34.) The proponents urged passage of Proposition 73 because it would, among other things, “place a reasonable contribution limit on how much any one donor can give to a candidate.” (Ibid.)

As passed by the voters, Proposition 73 limited campaign contributions from a “person” to a candidate to no more than $1,000 per fiscal year (Gov. Code, § 85301, subd. (a)), 1 and from a “political committee” to a candidate to no more than $2,500 per fiscal year (§ 85303, subd. (a)). The initiative further limited contributions from a “broad based political committee or political party” to a candidate to no more than $5,000 per fiscal year. (§ 85303, subd. (b).) By supporting these limits on the amount of permissible contributions, the voters demonstrated their willingness to accept a limited intrusion upon their constitutional rights of political expression and association 2 in order to reform the political process by eliminating the actuality and appearance of corruption resulting from large financial contributions to candidates and officeholders.

After the passage of Proposition 73, a federal appellate court upheld an injunction against enforcement of the contribution limits on the basis that the *689 fiscal year restrictions unconstitutionally discriminated in favor of incumbent candidates. (Service Emp. Intern, v. Fair Political Prac. Com’n (9th Cir. 1992) 955 F.2d 1312 , 1316-1321.) The federal court rested its decision on findings by the district court that incumbents can and do raise substantial amounts of money in each of the years of incumbency, while as a general matter challengers cannot and do not do so. 3 (Ibid.) In its decision, the court cited the following argument—advanced by the parties opposing Proposition 73’s contribution limits—which illustrated the discriminatory effect of the fiscal year restrictions as a mechanism for regulating the pace of contributions: “Thus, for example, an incumbent state legislator may tap an individual contributor for $1,000 in each fiscal year of her four-year term, while a potential opponent cannot realistically do the same until the fiscal years in which the primary and general elections occur. As a result, . . . Proposition 73 effectively limits the contributions of an individual who chooses to support a nonincumbent to $1,000 in each of two fiscal years [totaling $2,000 for the election cycle], while an individual who chooses to support an incumbent may contribute $1,000 in each of four fiscal years [totaling $4,000 for the same cycle].” (Id. at p. 1315.)

The question for us, then, is whether it is possible to reform Proposition 73’s contribution limits in a manner that closely effectuates the intent of the voters while eliminating the constitutionally impermissible fiscal year feature and its discriminatory effects. The obvious answer is yes.

The provisions restricting campaign contributions can and should be reformed on an “election cycle” basis to limit campaign contributions and loans to candidates to no more than $1,000 (for § 85301, subd. (a)), $2,500 (for § 85303, subd. (a)), and $5,000 (for § 85303, subd. (b)), multiplied by the number of years of the term of office sought by the candidate, and in partisan races to further incorporate a “per election” pacing mechanism so that no more than one-half the total allowable amount may be contributed prior to the primary election and no more than one-half of the total allowable amount may be contributed between the primary election and the general election. 4 This modified election cycle approach would serve to effectuate the intent of the voters to enact meaningful campaign contribution limits in *690 the total aggregate amounts permitted by Proposition 73, and at the same time, regulate the pace of contributions in a constitutionally permissible manner.

Petitioner Kopp and intervener Common Cause, both strongly supporting some form of reformation, stated at oral argument they agree that the modified election cycle approach would be more faithful to the voters’ intent than invalidating the flawed contribution limits in their entirety. Taking a slightly different position, however, petitioner and intervener urge adoption of a straight $l,000/$2,500/$5,000 per election limit, which represents a more stringent campaign finance reform than the modified election cycle proposal, or than Proposition 73 as enacted, or even than Proposition 68 (the competing reform measure which had been sponsored by intervener but had lost out to Proposition 73). (See lead opn., ante, at pp. 664-665.) Even though I agree with petitioner and intervener that either the straight per election reformation or the modified election cycle reformation would more closely effectuate the voters’ intent than outright invalidation, the more prudent course, I believe, would be to adopt the less restrictive modified election cycle approach since contribution limits impinge on fundamental First Amendment interests. (See Buckley v. Valeo, supra, 424 U.S. at pp. 21-23 [46 L.Ed.2d at pp. 689-690].) In my view, it should not be assumed the voters would prefer that their rights of political expression and association be limited more restrictively than either of the reform initiatives originally presented to them, even though per election contribution limits of $1,000, $2,500, and $5,000 would likely satisfy most of the voters and are probably constitutional. (See id. at pp. 24-29 [46 L.Ed.2d at pp. 690-694].)

Like petitioner Kopp and intervener Common Cause, respondent Fair Political Practices Commission (FPPC) also agrees that the voters clearly wanted contribution limits. Furthermore, respondent has never suggested that an election cycle approach, which seeks to preserve total campaign contributions in the amounts allowed under Proposition 73, would be either improper or too difficult to administer. Significantly, respondent represented to this court at oral argument that: (1) respondent did not care whether a per election or an election cycle approach is ultimately used in the event the contribution limits are reformed; and (2) respondent could certainly administer and enforce either approach effectively. Given these express representations and assurances, it is difficult to comprehend why the lead opinion relies upon respondent’s position as a basis for denying reformation and frustrating the voters’ will.

Finally, as the lead opinion points out, the opponents of reformation— intervener California Legislature and amicus curiae California Democratic *691 Party—take the position that the replication of total maximum amounts and the retention of a mechanism to regulate the pace of contributions are both necessary to reformation, but that neither is possible without this court engaging in extensive rewriting of the statutes or imposing its own policy judgments in place of those reflected in the statutes as enacted. (Lead opn., ante, at p. 667.)

If anything, the opponents’ position supports adoption of the modified election cycle proposal described above. By incorporating both of the stated necessary objectives, such an approach steadfastly adheres to the fundamental policy judgments reflected in the original statutes. No extensive rewriting or substitution of policy judgments has been threatened simply because the proposed reformation substitutes a constitutionally valid pacer in place of the flawed one, or because the reformation would allow, in some fiscal years, contributions to candidates for four-year offices that exceed the original $l,000/$2,500/$5,000 limits. (There is no question that, under the modified election cycle approach, contribution limits to candidates for two-year offices would effectively match the original limits on an aggregate basis and for each fiscal year.) Rather, the modification of the amount and timing of contributions for four-year offices merely reflect adjustments that are necessary to preserve intact the total aggregate contribution amounts contemplated under Proposition 73 while putting challengers and incumbents on equal footing in attaining those amounts. 5 Though the modified election cycle proposal differs from Proposition 73 in these minor particulars, in the main it accomplishes the broader policy objective reflected in Proposition 73 that the political process be reformed by the enactment of reasonable and meaningful contribution limits. 6

In Buckley v. Valeo, supra, 424 U.S. 1 , the United States Supreme Court saved a constitutionally flawed electoral reform statute by similarly modest means. There, Congress had enacted reporting and disclosure requirements *692 for federal election campaigns (2 U.S.C. former § 434(e)) with the intent “to achieve ‘total disclosure’ by reaching ‘every kind of political activity’ in order to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to corruption and undue influence possible.” ( 424 U.S. at p. 76 [ 46 L.Ed.2d at p. 720 ], fn. omitted.) In its effort to be all-inclusive, however, the statute—which applied broadly to “[e]very person (other than a political committee or candidate) who makes contributions or expenditures . . . .” (2 U.S.C. former § 434(e)(1), italics added)— raised serious problems of vagueness with regard to the nature of the “contributions” and “expenditures” that were required to be reported by those that were neither a political committee nor a candidate. ( 424 U.S. at p. 76 [ 46 L.Ed.2d at p. 720 ].) Rather than invalidating the reporting provision in its entirety, however, the high court narrowly construed the statutory terms “contributions” and “expenditures” so that the reporting requirements for such persons would apply “only in the following circumstances: (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate.” ( 424 U.S. at p. 80 [46 L.Ed.2d at pp. 722-723].)

By construing (and thus effectively reforming) the statutory language in this fashion, the high court in Buckley v. Valeo, supra, 424 U.S. 1 , clearly modified the wording and restricted the reach of the electoral reform legislation before it. The court’s decision in that case establishes, however, that such judicial action did not amount to an impermissible judicial rewriting of the statute or an improper substitution of the court’s own policy judgments for those of the legislative branch even though the statute as judicially construed differed in some respects from the reporting and disclosure scheme as enacted. In my view, reforming Proposition 73’s flawed contribution restrictions with the modified election cycle limits would constitute no more an impermissible rewriting or substitution of policy judgments than the high court’s actions in Buckley v. Valeo.

III.

In 1988, the people expressed an unmistakable desire for Proposition 73’s electoral reforms. For the reasons set forth above, I believe a reformation based upon the modified election cycle limits described above would provide a disposition of this case which, at once, would: (1) effectuate the intent of the electorate to enact meaningful campaign contribution limits; (2) eliminate the constitutional flaw identified by the federal courts; and (3) preserve the right of individuals and parties to contribute, and the ability of *693 candidates to receive, total campaign contributions in the amounts permitted by Proposition 73. In my view, this solution is true to the “spirit” and “intent” of Proposition 73, and would thereby accord proper deference to the important policy choices made by the electorate.

Arabian, J., and George, J., concurred.

Unless otherwise indicated, all further statutory references are to the Government Code.

As the United States Supreme Court recognized in its landmark decision upholding federal campaign contribution limits, “[m]aking a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals.” (Buckley v. Valeo (1976) 424 U.S. 1, 22 [ 46 L.Ed.2d 659, 689 , 96 S.Ct. 612 ].) For these reasons, the high court observed, contribution limits implicate fundamental First Amendment interests, such as the rights of political expression and association. (Id. at pp. 21-23 [46 L.Ed.2d at pp. 689-690].)

According to findings by the district court, “ ‘[m]ost challengers do not decide to run until relatively late in the [election] cycle because the prospects for success, which depend on national or state trends and information about the incumbent, cannot be assessed years in advance of the election.’ ” (Service Emp. Intern, v. Fair Political Prac. Com’n, supra, 955 F.2d at p. 1316.)

Under this reformation, for example, a “person” could contribute a maximum aggregate amount of $4,000 to any candidate running for a Senate or gubernatorial office, but could give no more than $2,000 of that amount for each primary and each general election. In addition, a “person” could contribute a maximum aggregate amount of $2,000 to any candidate running *690 for an Assembly office, but could give no more than $1,000 of that amount for each primary and each general election.

The opponents’ objections to the straight $1,000/$2,500/$5,000 per election limits advocated by petitioner Kopp and intervener Common Cause present a more sympathetic argument. After all, such limits would permit less in aggregate contribution amounts per election cycle than what intervener had hoped to accomplish with rival measure Proposition 68 and its public funding mechanism.

The lead opinion criticizes the modified election cycle proposal as providing no mechanism to regulate the pace of contributions for nonpartisan elections (e.g., all local elections). However, local legislators and electorates remain free under another provision of Proposition 73 to enact stricter limits for local elections (§ 85101), and to thus “fill in the gaps” as desired. As in fact indicated by ordinances filed with respondent FPPC, a total of 67 California cities and counties thus far have enacted their own local campaign contribution limits. Given the power and apparent willingness of local governments to enact their own stricter contributions limits, I do not believe that absence of a pacing mechanism for nonpartisan elections reasonably can be found to defeat the electorate’s intent.