Petition — California Fair Political Practices Commission v. Superior Court of Los Angeles County

Supreme Court, U.& ~

FILED

NOV 15 1979

IN THE L_MICHAML RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 179-772

CALIFORNIA FAIR POLITICAL

PRACTICES COMMISSION,

INSTITUTE OF GOVERNMENTAL

ADVOCATES,

Petitioner,

Vv

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

November 20, 1979

THOMAS K. HOUSTON

ROBERT M. STERN

THOMAS SOBEL

FAIR POLITICAL PRACTICES

COMMISSION

1100 K Street

Sacramento, CA 95814

LEE C. ROSENTHAL

Goldfarb & Owens

1333 Broadway

Oakland, CA 94612

DANIEL H. LOWENSTEIN

UCLA Law School

405 Hilgard

Los Angeles, CA 90024

Counsel for Petitioner

INDEX

Page

cach cass homnsibenasnnpvannsierlsstnsnnenensees 1

Nee es ac saptennenbinennontvnsqnonoveneeneonns 2

as sasscenshabsenenideniannnesentone 2

STATUTORY PROVISIONS AND ADMINISTRATIVE

Pe oc csccsccescasassovsasosszssesonsesnscsnecenvonsseeesoasses 3

SO I I ac ccccncecassnsesncecvtensssepssncenssovsessocvenseseanes 3

REASONS FOR GRANTING THE WRIT..........:.scssssssssssssssssssessssssssseeees 5.

I. The Supreme Court of the State of California’s decision

invalidating the prohibition on contributions by lobbyists is in

conflict with clear constitutional standards established by this

aici alec eka tains ovnebanesechuerscetnsontercscscecs 5

A. Background: The Political Reform Act of 1974 ........ssssssesee 5

B. The Ruling of the California Supreme Court ..........:ssssesseese 6

ELS SENET TEI RO 7

1. The public interest addressed by Section 86202 is a

compelling, not only a substantial, one and therefore

justifies a prohibition, rather than merely a limitation, on

ina occcscsscsscrecsevcosenisinrosrescnsssssnesseesesee 7

2. Section 86202 is sufficiently tailored to meet its

COMMDOUINE DUNC TUTDIOOE ..-..0..00ss0essnessvessvessvesvecsvssenssvessessesceees 13

II. If the decision of the Supreme Court of the State of California

is allowed to stand, unnecessary doubt will be cast upon other

federal and state laws which prohibit political contributions by

selected groups or entities, and efforts by other states to adopt

prohibitions on lobbyist contributions will be deterred.............. 18

Ss cvaotneennesovensnsontvebieoneusees 22

APPENDIX I: Opinion of the California Supreme Court; Judgment

and Findings of Fact and Conclusions of Law of the

RINNE GMINIUNUT GAIUINE .o.ccsccesoneconsoncsovecsessnsesvconsssccesvsosseees l

APPENDIX II: Statutes and Regulations...............csssssssssssssssssssessssesssesseseeses l

TABLE OF AUTHORITIES CITED

Cases

Page

Broadrick v. Oklahoma

ade alec 7, 18

Buckley v. Valeo

ne cccuekiiwinesonennines 7, 10, 14, 15, 18, 20

Civil Service Comm’n. v. National Assn. of Letter

Carriers, 413 U.S. 548 (1973) sscccocssssssssssesssssssssesssssessses 7, 11, 12, 15, 18

Ex parte Contin, 106 US. S71 (1GGE) n1sscccessscesscssvessvsescnsoscevessvsensnscceqesetvonsese 7

Federal Election Comm'n. v. Weinsten

i es I eth tittenircosesesieninnsnsnnnsonenepnannnrinnnsiins 12, 20

First National Bank of Boston v. Bellotti

I i acai idea etninivninbtceseaniorneniisceapinenisoneen 12

Institute of Governmental Advocates v. Younger

Pe et NE serie isarsesitehsetiniemetsntonniicnssenoininncinsninmecencesesrens 4

Louchheim, Eng. & People, Inc. v. Carson

35 N.C. App. 299, 241 S.E. 2d 401 (1978) scsccsssssssssssesssesssssssesssenneen 19

Pipefitters v. United States

re aca laaecocserengctonninnnmeinhgitnabseiineenencadapael 19

United Public Workers v. Mitchell

i I ict ieiarcsspinailasihcinnsiarilibariuaoebvncadbtasiasnvcistinsietenintsommenesees ness 7

United States v. Congress of Industrial Organizations

sinus i5, 19

United States v. United Automobile Workers

OO LLL LET 19

United States v. Boyle

482 F.2d 755 (D.C. Cir. 1973), cert. denied,

A I I icici csaesnnionaeeupischaneepesnpicnhasheasneoabiisatiionenisals 12

United States v. Chestnut

394 F. Supp. 581 (S.D.N.Y. 1975) aff'd. 533 F.2d 40 (2d Cir. 1976) 12, 20

United States v. Clifford

SF Be Cs 0 BOD stcesiciensinnsenseneensinnsessaiqrenreseconcncsnsanesnsens 12

United States v. First National Bank of Cincinnati

SER Ham, TAN CED, Cas FOTN) asa cscctcencncecsistencnssessesccsscocescucavtacnansses 19

United States v. Harriss

es nsiemaenaiane 8

United States v. Wurzbach

ST gach nck ideiccsnla sninnbadarliaicnainsisuiianiacioninitampetanmlsnn 7

ill

Statutes

Page

2 United States Code §§441b—44 le .......ccccccccccsscsssssssscssssccsscssssesssssnseensen 19, 20

2 United States Code §§441b-441dou.....ccccccccccccsssscesscssssscsssssssesssssnsesenen 12, 19

5 United States Code §7323, et seq. ..cccscssccccccssssssssssssscessssssssssssssesescssssn 12, 19

28 United States Code §1957 (3) ....c..ccccasscccccesccsccccesceccvscseccovccessencessssesssssose 2

California Government Code §81000, et seq. ..cccccsccscssssssssssssssssseee passim

Se eiiiiiiashasckspnanitasisclosnbacesetinca att Ie 6

oe, ER iS M8 Vie oh itv 6

EERE 2 LSS 17

SEAS AE eae A 0 9, 14

IRON MI IY chs Fiat 14

RES Se 13

RIES NE ESR 14

MRR Fee 3, 14

ETE Ne Toe 2 SS i passim

SOE AU tN AES ETL t 14

Georgia Code Anotated, §40-3808-2 ..........ccsssscssssssssesssssssssesssssssssssssssssnsss 21

Regulation

3 Cael. Adm. Oude QHIDDD ioc cateeede a 13, 17

Miscellaneous

California Voters Pamphlet, June 4, 1974, Primary

Election (Ballot Argument, Proposition 9) .......ccsssssssscsccssssssssssssssssssssee y

W. Endicott, California, A New Law, in H. Alexander

(ed.), Campaign Money: Reform and Reality in the

a MEE Rae Wen SN A 8

—

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No.

CALIFORNIA FAIR POLITICAL

PRACTICES COMMISSION,

Petitioner,

ar; ;

INSTITUTE OF GOVERNMENTAL

ADVOCATES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

The petitioner, the California Fair Political Practices

Commission (“FPPC”), respectfully prays that a writ of

certiorari issue to review the judgment and opinion of

the Supreme Court of the State of California entered in

this proceeding on August 23, 1979.

OPINION BELOW

The opinion of the Supreme Court of the State of

California is reported at 25 Cal. 3d 33 (1979) and appears

in Appendix I hereto. The judgment and findings of fact

ee

and conclusions of law of the Superior Court of Califor-

nia, County of Los Angeles, from which a direct appeal

to the Supreme Court of the State of California was

taken, also appear in Appendix I hereto.

JURISDICTION

The judgment of the Supreme Court of the State of

California was entered on August 23, 1979. As part of that

judgment, the Court ruled that the California Political

Reform Act’s prohibition on lobbyists making monetary

contributions to state candidates and elected state offi-

cials was violative of the First Amendment of the United

States Constitution (25 Cal. 3d at 43-45). A timely peti-

tion for rehearing on a portion of that judgment not

being challenged in this petition for certiorari was de-

nied on October 11, 1979. This petition for certiorari was

filed within 90 days of the Court’s August 23, 1979, judg-

ment. This Court’s jurisdiction is invoked under 28

U.S.C. §1257 (3).

QUESTIONS PRESENTED

Does the United States Constitution require invalida-

tion of a state statute which, in order to rid government

of actual and apparent corruption and bias, prohibits

paid lobbyists from making political contributions, or

serving as intermediaries for such contributions, to state

legislators and other elected state officials?

= ve

STATUTORY PROVISIONS AND

ADMINISTRATIVE REGULATIONS INVOLVED

Section 86202 of the California Government Code pro-

vides:

It shall be unlawful for a lobbyist to make a contribu-

tion, or to act as an agent or intermediary in the

making of any contribution or to arrange for the

making of a contribution by himself or by any other

person.

Section 86200 of the California Government Code pro-

vides that:

“Contribution” as used in this article means a contri-

bution made to a state candidate, a committee sup-

porting a state candidate, or an elected state officer.

Related statutory provisions (including definitions) and

administrative regulations appear in Appendix II here-

to.

STATEMENT OF THE CASE

The Institute of Governmental Advocates (“IGA”),

respondent, an organization composed of state lobbyists

regulated by the California Political Reform Act of 1974

(“Act”), commenced this action on December 30, 1974,

by filing a complaint in the Superior Court, County of

Los Angeles, seeking declaratory and injunctive relief.

The complaint was a broadside attack upon the constitu-

tionality of the Act in general and sections relating to

lobbyists in particular. With regard to Government

Code Section 86202, IGA raised a direct “federal ques-

‘ Section 81000 et seq. of the California Government Code.

a

tion” by contending that the section interfered with the

rights of its members to contribute financial support to

the statewide and legislative candidates of their choice

and thus unjustifiably infringed on their constitutional

rights of free speech, petition, assembly and association.?

On March 14, 1977, the entire action was tried before

the Superior Court on a stipulated set of facts. On Janu-

ary 16, 1978, the Court issued its judgment declaring,

inter alia, Government Code Section 86202 invalid as

violative of the United States Constitution.

On February 9, 1978, the Fair Political Practices Com-

mission filed a petition in the California Supreme Court

for a writ of mandamus and assumption of jurisdiction.

On March 16, 1978, the Supreme Court of the State of

California issued an alternative writ of mandamus and

assumed jurisdiction.

On August 23, 1979, the California Supreme Court

issued its opinion upholding the constitutionality of the

Act in general but striking down Section 86202 “because

it is not ‘closely drawn to avoid unnecessary abridgment

of associational freedoms.’” (25 Cal. 3d at 45.) In in-

validating Section 86202 the Court relied exclusively on

federal constitutional grounds.

2 On November 10, 1975, the Superior Court issued a ruling (and

pocniney injunction) holding that the “arranging clause” in

ction 86202 was invalid insofar as that clause, as interpreted in

an advisory opinion by the FPPC, prohibited a lobbyist from

making recommendations to his employer concerning to whom

the employer should contribute. That ruling was appealed and

the State Court of ~~ al upheld the trial court’s fs Institute

of Governmental Advocates vy. Younger, 70 Cal. App. 3d 878

aap ). No further ge on this particular matter was taken and

the issue was therefore eliminated from the case.

Pye

REASONS FOR GRANTING THE WRIT

I. The Supreme Court of the State of California’s

decision invalidating the prohibition on contribu-

tions by lobbyists is in conflict with clear constitution-

al standards established by this Court.

A. Background: The Political Reform Act of 1974

The Political Reform Act of 1974 was passed as an

initiative measure (Proposition 9) by more than 70 per-

cent of California voters. Much of the impetus for the

Act stemmed from the public’s concern over the actual

and perceived pernicious relationships between lobby-

ists and elected state officials. Among the findings and

declaration of the Act are that:

(b) Public officials, whether elected or appointed,

should perform their duties in an impartial manner,

free from bias caused by their own financial interests

or the financial interests of persons who have sup-

ported them;

(c) Costs of conducting election campaigns have in-

creased greatly in recent years, and candidates have

been forced to finance their campaigns by seeking

large contributions from lobbyists and organizations

who thereby gain disproportionate influence over

governmental decisions;

(e) Lobbyists often make their contributions to in-

cumbents who cannot be effectively challenged be-

cause of election laws and abusive practices which

give the incumbent an unfair advantage;

~~

(f) The wealthy individuals and organizations which

make large campaign contributions frequently ex-

tend their influence by employing lobbyists and

spending large amounts to influence legislative and

administrative actions; ... . Government Code Sec-

tion 81001(b), (c), (e) and (f).

And, among the principal purposes of the Act is that:

The activities of lobbyists should be regulated and

their finances disclosed in order that improper influ-

ences will not be directed at public officials; . . .

Government Code Section 81002(c).

In short, the public’s interest in enacting the Political

Reform Act was “to rid the political system of both ap-

parent and actual corruption and improper influence.”

(25 Cal. 3d at 45.)

In order to effectuate these purposes, Section 86202 of

the Act prohibits lobbyists (as defined) from making

political contributions, or serving as intermediaries for

such contributions, to state candidates, committees sup-

porting state candidates, and elected state officials.

B. The Ruling of the California Supreme Court

The California Supreme Court, while conceding that

the voters had a sufficiently important interest to war-

rant intrusion into the associational freedoms of lobby-

ists, assigned insufficient weight to that interest and

struck down Section 86202 on the grounds that it was not

closely enough tailored to avoid unnecessary abridg*

ment of such freedoms. (25 Cal. 3d at 45.) In effect, the

Court ruled that something less than an absolute ban on

contributions (i.e., a limitation on contributions) was

required to pass constitutional muster:

= =

The claimed state interest is to rid the political sys-

tem of both apparent and actual corruption and im-

proper influence. Under Buckley such a purpose

justifies closely drawn restrictions. However, it does

not appear that total prohibition of all contributions

by any lobbyist is a closely drawn restriction. . . .

[T]he statute does not discriminate between small

and large but prohibits all contribution. . . . 25 Cal. 3d

at 45.

C. Argument

In reaching its decision that Section 86202 was uncon-

stitutional, the California Supreme Court failed to apply

the constitutional standards enunciated by this Court in

a long series of cases including Buckley v. Valeo, 424 U.S.

1 (1976), and CSC v. Letter Carriers, 413 U.S. 548 (1973);

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ; United Pub-

lic Workers v. Mitchell, 330 U.S. 75 (1947); United States

v. Wurzbach, 280 U.S. 396 (1930); Ex parte Curtis, 106

U.S. 371 (1882) (“government employee cases’).

1. The public interest addressed by Section 86202 is a compelling, not

only a substantial, 1:e and therefore justifies a prohibition, rather than

merely a limitation, on contributions by lobbyists.

In California as elsewhere lobbyists are paid for the

specific purpose of exercising influence over govern-

mental decisions so that those decisions will be benefi-

cial to the private interests of those who employ them.

As a result, lobbyists occupy a unique niche in our politi-

cal system and, as this Court has recognized, without

appropriate mechanisms to regulate their activities:

The voice of the people may all too easily be

drowned out by the voice of special interest groups

seeking favored treatment while masquerading as

oa

proponents of the public weal. . . . United States v.

Harriss, 347 U.S. 612, 625 (1954).

Prior to the adoption of the Political Reform Act, the

Catifornia campaign contribution process encouraged a

system in which lobbyists were a’sle to gain influence

and access, not on the basis of the merits of the argu-

ments they espoused but rather on the basis of the finan-

cial benefits they could bestow upon public officials.

Lobbyist participation in the making of campaign con-

tributions reinforced the public perception that lobby-

ists wielded disproportionate influence because of the

financial resources at their disposal and their ability to

utilize such resources .to buy access to and influence

over government decision makers.®

Indeed, the parties to this litigation stipulated that

prior to the passage of the Political Reform Act, lobbyists

regularly purchased meals and drinks for state officials;

provided hunting, fishing and vacation trips for officials

and their families; held weekly gatherings at which

meals, drinks and entertainment were provided; and

had complete control over the campaign funds of their

employers, which included the power to determine who

and how much an official would receive in political con-

one.

* In commenting on the 1974 California elections, the commentator

noted that:

Then, of course there were the lobbyists, who dumped huge

amounts of money into campaigns as a last hurrah before

Proposition 9, which would prohibit lobbyist donations, went

into effect. Several top lobbying groups and individual

lobbyists contributed well over $100, ae, 2

Endicott, California, a New Law, in H. Alexander (ed.),

“ge Money: Reform and Reality in the States, p. 127

Lo RENE Oe ae eee -

te

tributions. They further stipulated that:

‘[S]ome lobbyists engaged in the practices enumer-

ated [above] for the purpose of gaining undue influ-

ence over legislators and state officials.’

25 Cal. 3d, dissent of Bird,

CJ., at 61.

In enacting Proposition 9, the people of California

concluded that a ban on all monetary political contribu-

tions * by lobbyists to state officials was absolutely essen-

tial in breaking this pattern of actual and apparent

corruption and in restoring their confidence.in the fair-

ness of state government.® This judgment, coming as it

did from the voting public itself, should be entitled to

great weight—at least as much if not more, in fact, than

that traditionally afforded to “legislative” judgments.

For it is the attitude, belief and faith of the public in the

actual and perceived fairness of their government that

is critically important.

While the problem of actua/ corruption conceivably

could have been addressed by a limitation rather than

* The term “monetary political contributions” is meant to include

contributions of money and goods and services for which

adequate consideration is not received. Voluntary personal

services are specifically excluded from the definition of

“contribution.” Government Code Section 82015.

*This concern was clearly articulated in the official ballot

arguments submitted to the voters in support of Proposition 9:

It’s time the people of California put an end to corruption in

politics. It is time the politicians are made directly responsible

to the people—not to purchased demands of special interests.

Why do powerful interests continue to dominate? Because the

business of politics is usually conducted in secret, because in

Sacramento lobbyists can provide secret favors to help pass

new laws. Because candidates for office must seek increasing

amounts of special interest money to meet skyrocketing costs.

. . . California Voters Pamphlet, June 4, 1974, Primary

Election at 36.

— *

an absolute prohibition on political contributions, such

an approach would not have corrected the appearance

of corruption arising from the spectre of any money

passing from lobbyists to legislators and other high rank-

ing elected officials.®

This essential distinction was ignored by the Califor-

nia Supreme Court. This Court, however, has clearly

recognized that limitations on campaign contributions

and other forms of political activities are equally as valid

to deal with the appearance of corruption as actual cor-

ruption, and that in determining whether a prohibition

is sufficiently tailored the objective of ridding the politi-

cal system of the appearance of corruption is often as

compelling as that of ridding the system of actual cor-

ruption. In upholding strict campaign contribution limi-

tations in Buckley the Court stated:

Of almost equal concern as the danger of actual guid

pro quo arrangements is the impact of the appear-

ance of corruption stemming from public awareness

of the opportunities for abuse inherent in a regime

of large individual financial contributions. In CSC vy.

Letter Carriers, supra, the court found that the dan-

ger to “fair and effective government” posed by par-

tisan political conduct on the part of federal em-

ployees charged with administering the law was a

sufficiently important concern to justify broad re-

° As the Chief Justice pointed out in her dissent:

Access is the key to influence. Having opened the door, the

campaign contribution whether large or small is in a position to

speak not only for itself but to deliver a message amplified by the

resources of the special interest groups employing the lobbyist.

. . . The giving of a campaign contribution, regardless of size, is

sufficient to establish the necessary access.

25 Cal. 3d at 61.

(Emphasis added.)

eee

ae aw

strictions on the employees’ right of partisan political

association. Here, as there, Congress could legiti-

mately conclude that the avoidance of the appear-

ance of improper influence “is also critical . . . if

confidence in the system of representative Govern-

ment is not to be eroded to a disasterous extent.”

424 US. at 27.

(Emphasis added.)

And, in dismissing the argument that limitations on a//

contributors, as opposed to those actually seeking im-

proper influence, were overly broad the Court stated:

Not only is it difficult to isolate suspect contributions,

but, more importantly, Congress was justified in con-

cluding that the interest in safeguarding against the

appearance of impropriety requires that the oppor-

tunity for abuse inherent in the process of raising

large monetary contributions be eliminated.

424 US. at 30.

(Emphasis added.)

Similarly, in Letter Carriers where the Court upheld

a broad ban on political contributions and political ac-

tivities on the part of federal employees,’ the Court

stressed that:

There is another consideration in this judgment: it is

not only important that the government and its em-

ployees in fact avoid practicing political justice, but

it is also critical that they appear to the public to be

7 The prohibitions upheld in the government employee cases, in

addition to the ban on monetary contributions, included: taking

an active part in running a political campaign, actively

participating in political fund raising activities, soliciting votes in

support of a partisan candidate for public office, running for a

artisan office, and endorsing or opposing a partisan candidate

or public office in political advertisement, a broadcast,

campaign literature, or similar material.

=

avoiding it. . . . 413 U.S. at 565. (Emphasis added.)

Among the objectives justifying the Hatch Act’s (5

U.S.C. 7323 et seg.) substantial intrusions into the as-

sociational rights of government employees were: to en-

sure that government employees “enforce the law and

execute the programs of the government without bias or

favoritism” and that “government employees [should]

be free from pressure and from express or tacit invita-

tion to vote in a certain way or perform political chores

in order to curry favor with their superiors rather than

to act out their own beliefs.” (413 U.S. at 565, 566.)

The purpose underlying Section 86202’s ban on lobby-

ist contributions is equally as compelling. The objective

is to insulate legislators and other elected state officers

from the undue monetary pressures of lobbyists and to

ensure that they make and, as importantly appear to

make, decisions in enacting and enforcing laws and in

exercising their oversight responsibilities in a manner

devoid of favoritism or bias. And, like the Hatch Act’s

absolute prohibitions, Section 86202’s absolute prohibi-

tion is essential to effectuating this compelling goal.®

* Absolute prohibitions on political contributions by labor unions,

Corporations, national banks and government contractors (2

U.S.C. §441b-441d) have been consistently upheld by lower

federal courts. See United States v. Boyle, 482 F 2d 75 (D.C. Cir.

1973) cert. denied 414 U.S. 1076 (1973); United States v.

Chestnut, 394 F. Supp. 581 (S.D.N.Y. 1975) aff'd 533 F.2d 40 (2d

Cir. 1976); United States v. Clifford, 409 F. Supp. 1070 (E.D.N.Y.

1976); Federal Election Commission v. Weinsten, 462 F. Supp.

243 (S.D.N.Y. 1978). As this Court stated in First National Bank

of Boston v. Bellotti, 435 U.S. 765 (1978): “the overriding concern

behind the enactment of [these] statutes . . . was the problem

of corruption of elected representatives through the creation of

political debts. ... The importance of the governmental

interest in preventing this occurrence has never been doubted.

.. . 435 U.S. at 788, fn. 26. (Citations omitted, emphasis added. )

= .

2. Section 86202 is sufficiently tailored to meet its compelling public

purpose.

While the purposes underlying the prohibitions in the

Hatch Act and Section 86202 are clearly analogous, the

prohibition contained in Section 86202 is demonstrably

narrower in scope and more precisely tailored to its

objective. First, the prohibition applies only to persons

who are paid for their lobbying services and who meet

the Act’s strict definition of lobbyist.

Government Code Section 82039 defines a lobbyist

as:

any person who is employed or contracts for econom-

ic consideration, other than reimbursement for rea-

sonable travel expenses, to communicate directly or

through his agents with any elective state official,

agency official or legislative official for the purpose

of influencing legislative or administrative action, if

a substantial or regular portion of the activities for

which he receives consideration is for the purpose of

influencing legislative or administrative action. . . .

This definition is further refined and restricted by FPPC

regulations so as to include only those persons who

spend a substantial portion of their time in regu/ar and

direct communication with legislators or other public

officials. (2 Cal. Adm. Code Section 18239.) Thus de-

fined, the prohibition applies to approximately 700 in-

dividuals, contrasted with the some five million federal

employees affected by the broad prohibitions of the

Hatch Act.

Second, lobbyists are prohibited from making contri-

butions only to elected state officers, candidates for state

office, and committees supporting such candidates

= =

(Government Code Section 86203)—precisely the offi-

cials who are in the best position to influence decisions

affecting lobbyists and their employers ° and with whom

lobbyists are, therefore, most likely to have contact. Lob-

byists remain free to contribute to local and federal can-

didates and officials as well as to ballot initiatives and

referenda.!°®

Third, and most importantly, aside from banning

monetary contributions, Section 86202 leaves all lobby-

ists free to pursue a full panoply of associational and free

speech rights guaranteed by the United States Constitu-

tion. Lobbyists are free to endorse candidates, to con-

tribute their voluntary services to candidates and

elected state officials, to become active members of po-

litical committees, and to otherwise fully participate in

the political process.'! Thus, Section: 86202 entails an

instrusion into only one portion of the associational

rights of lobbyists—the portion adjudged most inimical

to the public interest.

In Buckley and the government employee cases the

Court drew a sharp distinction between restrictions

* Contributions are prohibited only to persons holding, or

candidates seeking election to, the following offices: State

Legislature, Governor, Lieutenant Governor, Attorney General,

State Controller, Secretary of State, Treasurer, Superintendent

of Public Instruction, and State Board of ualization.

Government Code Sections 86200, 82050, 82024. For a more

detailed discussion of the broad duties and influence of these

officials, see page 17-18, infra.

1° Government Code Section 86200.

‘t Government Code Section 82015; opinion requested by Elliott J.

Dixon, 2 FPPC Opinions 70 (No. 75-187, June 1, 1976); opinion

requested by Janet K. Adams, 2 FPPC Opinions 127 (No. 75-173,

Aug. 3, 1976).

~~ oo

placed on associational freedoms by campaign laws and

restrictions placed upon the rights of expression which

lie at the “core” of First Amendment freedoms and thus

require a greater state interest to justify interference.!?

Nothing in Section 86202 infringes upon the free speech

rights of lobbyists. And, the compelling public interest

underlying Section 86202 justifies its limited and tailored

intrusion into the associational rights of lobbyists.

Despite the carefully tailored nature of Section 86202,

the California Supreme Court nevertheless found fault

with the statute, not only because it prohibits rather

than limits political contributions by lobbyists, but also

because:

First, the prohibition applies to contributions to any

and all [state] candidates even though the lobbyist

may never have occasion to lobby the candidate.

Secondly, the definition of lobbyist is extremely

broad, to include persons who appear regularly

before administrative agencies seeking to influence

administrative determinations in favor of their cli-

ents.

25 Cal. 3d at 45.

With regard to the Court’s first observation, it is true

that alternative means for attempting to limit the mone-

tary link between lobbyists and state officials can be

imagined as the Court suggests. But such means either

would not accomplish the purpose of the Act or would

12 Buckley v. Valeo, 424 U.S. 1, at 25-26, fn. 29, 47-48, fn. 54; CSC v.

Letter Carriers, 413 U.S. 548, at 568, 575-76, 579. See also, United

States v. CIO, 335 U.S. 106, concurrence by Justice Frankfurter

124-156 (1948).

ms oe

impose significantly greater burdens on lobbyists’ rights.

For example, the Act could have provided that a lobby-

ist could not lobby any state official to whom he made

a contribution. However, such a provision would impose

a direct burden on the lobbyist’s right to communicate

with officials of the government to whom he has made

contributions. Alternatively, the Act could have pro-

vided that lobbyists could not contribute to officials they

had lobbied in the past two years. Such a provision

would allow a lobbyist, through contributions, to buy

access to or influence over an official he has not lobbied

in the past two years, but whom he knows or suspects he

will lobby in the near future.

Similarly, the Act could have provided that lobbyists

could not contribute to officials they were planning to

lobby. Such a provision, however, would be completely

unenforceable, turning as it would on the subjective

intentions of the lobbyists themselves. It would also ne-

cessitate the government becoming involved in an anal-

ysis of the intentions and strategies of lobbyists—a far

greater threat to their First Amendment rights. In addi-

tion, because of the vagaries of committee assignments

and voting alignments it is impossible to predict which

legislators will wield the determining votes on issues of

importance to any given lobbyist. Consequently, to be

effective the prohibition must encompass contributions

to all legislators.

It is also true, as the Court observes, that Section 86202

prohibits contributions to all state candidates and elect-

ed state officers by a// lobbyists, even those who lobby

exclusively before administrative agencies. Such

breadth, however, is absolutely essential to effectuating

aa

aw IT

the purpose of Section 86202. Of the 128 state officers

covered by the prohibition, 120 are members of the

State Legislature who, in addition to enacting laws, exer-

cise broad budgetary and oversight responsibilities with

regard to all executive branch agencies, specifically

passing upon the salaries of high ranking executive

branch personnel and either confirming or denying

their appointments by the Governor. As part of this

process, individual legislators exercise considerable in-

fluence over “administrative determinations” made by

executive agencies.

The other eight positions covered by the prohibition

are the Governor, Lieutenant Governor, Attorney Gen-

eral, Treasurer, Controller, Secretary of State, members

of the Board of Equalization, and Superintendent of

Public Instruction. All of these positions !* exercise gov-

ernment wide budgetary, legal or oversight responsibili-

ties. Thus, in addition to having considerable influence

over the Legislature, they too are in a position to influ-

ence administrative determinations significantly. It is

important therefore that even lobbyists who limit their

activities exclusively to administrative agencies '* be

*S One possible exception might be the Superintendent of Public

Instruction. The Act, however, contains a standard severability

clause. Section 81015 of the Government Code. pre agro

the inclusion of the Superintendent of Public Instruction could

have been struck down while leaving the remaining state

officials covered.

'* A person who lobbies exclusively before administrative agencies

does not become a “lobbyist” under the Act unless he spends

over 200 hours delivering direct testimony in administrative

proceedings. 2 Cal. Adm. Code Section 18239 (e). Under this test

it is estimated that less than 20 persons are lobbyists as a result

of their appearances before administrative agencies and most of

these appear before the Public Utilities Commission—an agency

with exceedingly broad jurisdiction and impact.

=» 18—

prohibited from making contributions to all such offi-

cials.

In Buckley and the government employee cases this

Court upheld the methods selected by Congress to regu-

late political campaign contributions. In Buckley this

Court aid not require Congress to limit the contribu-

tions of only those individuals with matters actually

pending or planned before Congress or the President.

Similarly, in Letter Carriers, Broadrick and Mitchell,

this Court did not require that there be a direct nexus

between the duties and authorities of the government

employee wishing to make contributions and the legisla-

tive committee assignment of, or other base of influence

possessed by, the official to whom the contribution was

to be made. Such fine line drawing, given the compel-

ling nature of the public interest to be served, was wisely

left to the discretion and judgment of the Congress. The

Supreme Court of California should have followed suit

and deferred to the judgment exercised by California

voters in enacting Section 86202.

ll. If the decision of the Supreme Court of the State of California

is allowed to stand, unnecessary doubt will be cast upon

other federal and state laws which prohibit political contribu-

tions by selected groups or entities, and efforts by other

States to adopt prohibitions on lobbyist contributions will be

deterred.

The essence of the California Supreme Court’s ruling

is that something less than an absolute prohibition on

lobbyist contributions (i.e., a limitation) is required to

aie

pass constitutional muster. Such a ruling casts unneces-

sary doubt upon a myriad of other absolute prohibitions

contained in both federal and state laws.

Persons and entities currently prohibited from mak-

ing campaign contributions under federal law include

federal employees and state employees whose salaries

are funded out of federal funds (5 U.S.C. § 7323 et seq.) ,

national banks, corporations and labor unions (2 U.S.C.

§ 441b), government contractors (2 U.S.C. § 44lc) and

foreign nationals (2 U.S.C. §44le). Many states have

adopted similar laws prohibiting contributions by these

same persons and entities.'®

Although the prohibitions contained in 2 U.S.C. § 441b

and § 441c have been upheld by lower federal courts,'®

this Court has never directly addressed a First Amend-

ment challenge to these statutes.!7 And, in the absence

of a substantive ruling from this Court,!* the California

Supreme Court’s decision will cast doubt upon the con-

tinued viability of those lower court decisions.

'S Half of the states prohibit contributions from one or more groups

of persons or entities. Twenty-two states, for example, prohibit

corporate contributions, seven prohibit union contributions; two

prohibit contributions from all associations; three prohibit

contributions from members of commissions regulating

elections, and one prohibits contributions from state employees.

‘6 See cases cited in footnote 8. See also United States v. First

National Bank of Cincinnati, 329 F. Supp. 1251 (S.D. Ohio 1971);

Louchheim, oa & People, Inc. v. Carson, 35 N.C. oy 8 299, 241

S.E. 2d 401 (1 ra The prohibition on contributions by foreign

nationals (2 U.S.C. § 44le) has never been challenged.

'7 See generally, Pipefitters v. United States, 407 U.S. 385 (1972);

United States v. United Automobile Workers, 352 U.S. 567 (1957) ;

United States v. CTO, 335 U.S. 106 (1948).

'® The instant case would provide this Court with an excellent

vehicle for undertaking an in-depth First Amendment analysis.

- 90.

To cite but one example, the prohibition on contribu-

tions by government contractors (2 U.S.C. § 44lc) was

recently upheld against a First Amendment challenge

in Federal Election Commission v. Weinsten, 462 F.

Supp. 243, 249 (S.D.N.Y. 1978). This is the only federal

court case dealing with an absolute prohibition on con-

tributions in the post-Buckley era, and the Court relied

principally on Buckley and United States v. Chestnut,

394 F’. Supp. 581 (S.D.N.Y. 1975) in reaching its decision.

The purposes and scope of the government contractor

prohibition closely parallel those of Section 86202 of the

California Government Code. The government contrac-

tor prohibition applies to both individual and corporate

contract consultants and, like the prohibition on lobbyist

contributions, is designed to ensure that decisions are

made (and contracts awarded) on the basis of merit and

fair competition rather than on the basis of who has

made contributions to the official awarding the contract

or his congressional overseers. This compelling public

purpose was found to warrant an absolute prohibition on

contributions. (462 F’. Supp. at 249.) Under the standards

enunciated by the California Court, however, the gov-

ernment contractor prohibition would now have to fall.

First, it is an absolute prohibition and limitations on

contributions by government contractors would be less

restrictive. Second, it prohibits contributions to all fed-

eral condidates as opposed to only those to whom a con-

tractor may go to solicit business. Finally, it prohibits

contributions by contractors who do business exclusively

with executive branch agencies and who have no con-

OS ET,

=

tact with Congress. This same analysis, of course, would

be equally applicable to prohibitions on contributions by

labor unions, corporations, national banks and foreign

nationals.

This example illustrates both the conflict which exists

between the California Supreme Court and federal

courts as well as the potential impact the California

Court’s decision may have on the continued viability of

other absolute prohibitions in federal law. In addition,

the California Court’s decision will certainly be cited in

efforts to overturn the myriad of state laws which have

been patterned after these federal provisions.

As importantly, the California Supreme Court’s deci-

sion will deter attempts by other states to prohibit con-

tributions by lobbyists. The California Political Reform

Act has served as a model for similar political reform

statutes in other states. At the present time, some 40

states have laws regulating campaign contributions and/

or the activities of lobbyists. Many provisions of these

state laws were specifically patterned after provisions in

the Political Reform Act. And, while no other state has

yet followed California’s lead in adopting an absolute

prohibition on lobbyist contributions, several state

commissions charged with administering political re-

form laws are actively considering such action. *® These

'’ The State of Georgia, however, prohibits contributions to state

officers by persons representing public utility companies.

$a ne aan 1974, p. 155, as pom & Georgia Code Annotated,

*” Informal survey taken by Robert M. Stern, Member, Steering

Committee, Chae on Governmental Ethics Laws, an

organization composed of state agencies administering

campaign and lobbying laws.

~ 99-

actions will be deterred if the California Supreme |

Court’s decision is allowed to stand. Thus, the actual

corruption and appearances of corruption surrounding

political contributions by lobbyists will remain unbri- |

dled in all 50 states and the public confidence in the |

fairness of their state governments will continue to de-

cline.

a RE 6 eo a,

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Supreme Court

of the State of California.

ee ee.

Respectfully submitted,

THOMAS K. HOUSTON

ROBERT M. STERN

THOMAS SOBEL

LEE C. ROSENTHAL

DANIEL H. LOWENSTEIN

Counsel for Petitioner

Fair Political Practices Commission

APPENDIX |

IN THE

SUPREME COURT OF THE STATE OF

CALIFORNIA

FAIR POLITICAL PRACTICES

COMMISSION,

Petitioner,

V.

THE SUPERIOR COURT OF

LOS ANGELES COUNTY, Boris

Respondent;

INSTITUTE OF GOVERNMENTAL

ADVOCATES et al.

Real Parties in Interest.

Z

The Fair Political Practices Commission petitions for

writ of mandate to compel respondent court to vacate

a judgment enjoining enforcement of the Political

Reform Act of 1974 (Gov. Code, § 81000 et seq.), an

initiative measure.

We have stayed enforcement of the judgment except

for paragraph 5, “That intervenor Fair Political

Practices Commission . . . [is] permanently enjoined

from commencing proceedings as civil prosecutor

against any lobbyist based on the single act of advising

or making a recommendation to the employer of the

lobbyist with regard to the making of a political

contribution where the advice or recommendation

results in a contribution from the employer.” This

— =

provision made permanent a preliminary injunction

issued in 1975 by Judge Hupp of the superior court, and

affirmed in Institute of Governmental Advocates v.

Younger (1977) 70 Cal.App.3d 878.

Respondent court declared the entire initiative

invalid, holding it violates the one subject rule

applicable to initiatives (Cal.Const., art. II, § 8, subd.

(d), formerly art. IV, § 22); section 86202 of chapter 6

(prohibiting lobbyist contributions to political

campaigns) violates First Amendment and equal

protection guarantees; and, with minor exceptions, the

remainder of chapter 6 violates equal protection

guarantees. Sections of chapter 6 declared invalid

include limitations on lobbyist gifts to certain public

officials, and disclosure requirements for certain persons

and organizations involved with lobbying.

THE SINGLE SUBJECT RULE

The initiative concerns elections and different meth-

ods for preventing corruption and undue influence in

political campaigns and gov_rnmental activities. Chap-

ters 1 and 2 contain general provisions and definitions,

including a severability provision. Chapter 3 establishes

the commission. Chapter 4 establishes disclosure re-

quirements for candidates’ significant financial support-

ers. Chapter 5 places limitations on campaign spending.

Chapter 6 regulates lobbyist activities. Chapter 7 estab-

lishes rules relating to conflict of interest. Chapter 8

establishes rules relating to voter pamphlet summaries

of arguments on proposed ballot measures. Chapter 9

a.

regulates ballot position of candidates. Chapter 10 estab-

lishes auditing procedures to aid enforcement of the

law, and Chapter 11 imposes penalties for violations of

the act.

Several sections of the initiative have been held

invalid in prior decisions. Under the compulsion of

Buckley v. Valeo (1976) 424 U.S. 1, we held sections

85300-85305 limiting expenditures on statewide ballot

propositions violated the freedom of speech guarantee

of the First Amendment to the United States Constitu-

tion. (Citizens for Jobs & Energy v. Fair Political Prac-

tices Com. (1976) 16 Cal.3d 671.) In Hardie v. Eu (1976)

18 Cal.3d 371, we concluded Government Code sections

85200-85202 limiting the amount to be expended for

circulation of initiative petitions was in conflict with

First Amendment guarantees, again relying on Buckley.

In Institute of Governmental Advocates v. Younger, su-

pra, 70 Cal.App. 3d 878, the Court of Appeal held that a

commission ruling precluding lobbyists from advising

their employers to make political contributions violated

First Amendment guarantees.

The California Constitution, article II, section 8, sub-

division (d), states: “An initiative measure embracing

more than one subject may not be submitted to the

electors or have any effect.”

The single subject requirement for initiative meas-

ures was adopted in 1948 as article IV, section lc. The

next year this court in Perry v. Jordan (1949) 34 Cal. 2d

87, 92-93, construed the provision as follows: “The prob-

lem of whether more than one subject is embraced with-

ae

in one legislative act is not new in this state. Although

section lc has been newly added extending the require-

ment to initiative constitutional amendments, the Con-

stitution for many years has required that ‘Every act

shall embrace but one subject, which subject shall be

expressed in its title.’ (Cal.Const., art. IV, § 24.) The

proper scope and application of that provision as to sin-

gleness of subject was elucidated, as the latest word on

the subject, by this court in Evans v. Superior Court, 215

Cal. 58, 62 [8 P.2d 467], upholding the adoption of the

Probate Code in a single enactment:‘ . . . we are of the

view that the provision is not to receive a narrow or

technical construction in all cases, but is to be construed

liberally to uphold proper legislation, all parts of which

are reasonably germane. (Heron v. Riley, 209 Cal. 507,

510 [289 P. 160].) The provision was not enacted to pro-

vide means for the overthrow of legitimate legislation.

(McClure v. Riley, 198 Cal. 23, 26 [243 P. 429].) .. . [q

Numerous provisions, having one general object, if fairly

indicated in the title, may be united in one act. Provi-:

sions governing projects so related and interdependent

as to constitute a single scheme may be properly includ-

ed within a single act. (Barber v. Galloway, 195 Cal. 1,

3 [231 P. 34].) The legislature may insert in a single act

all legislation germane to the general subject as ex-

pressed in its title and within the field of legislation

suggested thereby. (Treat v. Los Angeles Gas Corp., 82

Cal.App. 610 [256 P. 447].) Provisions which are logically

germane to the title of the act, and are included within

its scope, may be united. The general purpose of a stat-

=

ute being declared, the details provided for its accom-

plishment will be regarded as necessary incidents. (Es-

tate of Wellings, 192 Cal. 506, 519 [221 P. 628]; Buelke v.

Levenstadt, 190 Cal. 684, 687 [214 P. 42]; and cases cited.)

The language of this court in Robinson v. Kerrigan, 151

Cal. 40, 51 [121 Am.St.Rep. 90, 12 Ann. Cas. 829, 90 P.

129], is especially applicable to this case at this point. A

provision which conduces to the act, or which is auxil-

iary to and promotive of its main purpose, or has a neces-

sary and natural connection with such purpose is

germane within the rule. . . . Our conclusion, there-

fore, is that the newly enacted Probate Code does not

embrace more than one subject. Its numerous provisions

have one general object. The classification of these

provisions, made by the code commission, and carried

into the title of the act, is a “reasonably intelligent refer-

ence to the subject to which the legislation of the act is

to be addressed”, which is all that is requisite.’ (See, also,

cases collected in 23 Cal.Jur. 646-650; 50 Am Jur., Stat-

utes, §§ 196-199.) When the scope and meaning of words

or phrases in the statute have been repeatedly interpret-

ed by the courts, there is some indication that the use of

them in a subsequent statute in a similar setting carries

with it a like construction. (City of Long Beach v. Payne,

3 Cal.2d 184 [44 P.2d 305].) There is nothing in the argu-

ment to the voters when section lc of article IV was

adopted contrary to such construction or the purposes

underlying the ‘one subject’ limitation.”

Relying upon Perry v. Jordan, this court applied the

reasonably germane test and upheld the California Wa-

=

ter Resources Development Bond Act in Metropolitan

Water Dist. v. Marquardt (1963) 59 Cal.2d 159, 172-173.

The act provided for issuance of nearly $2 billion in

bonds, the proceeds to be used for dams, levees, channel

improvements, a water distribution system, drainage

facilities, electrical energy generation and transmission

systems, and local water development facilities.

Recently, we rejected a claim that the one subject

requirement was violated by an initiative limiting real

property tax rates, limiting real property assessments,

restricting state taxes, and restricting local taxes. (Cal.

Const., art. XIII, A; the Jarvis-Gann Initiative.) We held

that all provisions were functionally related and reason-

ably germane to the subject of property tax relief. (Ama-

dor Valley Joint Union High Schl. Dist. v. State Bd. of

Equalization (1978) 22 Cal.3d 208, 231.)?

Real party in interest Institute of Governmental Ad-

vocates (Advocates) argues that a more restrictive test

should be applied in determining compliance with the

one subject requirement applicable to initiatives than to

the same requirement applicable to legislation. Two rea-

sons are offered for a more restrictive test: the lengthy

ballot propositions, having numerous provisions, will

mislead and confuse the voter, and danger exists that

voters wanting one or more of the provisions offered

*A Michigan statute adopted by the Legislature—containing

provisions similar to those before us—was held to violate the one

subject Sor nek eraln re Advisory Opinion (Being 1975 PA

227) (1976) 240 N.W.2d 193.) As an alternate ground of decision,

the Washington Supreme Court held that a similar initiative

involved only a single subject. (Fritz v. Gorton (1974) 517 P.2d

911, 920-921.)

er

might vote for the proposition even though they reject

other provisions—a danger of so-called “log rolling.”

(See Schmitz v. Younger (1978) 21 Cal.3d 90, 93, 97 et

seq. (dis. opn.).)

Advocates does not articulate a particular test to re-

place the reasonably germane test. Rather, Advocates

takes the position that the reasons for a more restrictive

test necessarily provide the measure of such test. Advo-

cates claims both reasons apply to the Political Reform

Act of 1974, asserting the initiative is lengthy and confus-

ing—containing more than 20,000 words and numerous

interrelated provisions—and that it involves four wholly

separate substantive subjects: (1) regulation of election

to public office, (2) regulation of ballot measure peti-

tions and elections, (3) regulation of public official con-

flicts of interest, and (4) regulation of lobbyists.°

* Each of the four headings is further broken down as follows: ‘1.

Regulation of election to public office. The provisions of the Act

dealing with this subject include regulations carter | to: it

Campai committee organization (§§ 84100-84103). [¢

Required reporting of campaign contributions and expenditures

t 84200-84914). ig Limitations upon campaign contributions

($§ 84300-84304). [§] Requirements respecting mass mailings (§

). [§] Limitation of campaign expenditures by statewide

candidates (§§ 85100-95108 [later repealed]). [4] Regulation of

the position of candidates on the ballot (§ 89000). [] Prohibition

of sending of legislative newsletters or other mass mailings at

— expense on behalf of any elected state officer after he has

ed a declaration of candidacy (§ 89001). [4] 2. Regulation of

ballot measure petitions and elections. The provisions of the Act

dealing with this subject include regulations se to iy

Campai committee organization (§§ 1 ) |

Required reporting of ballot measure campaign contributions

and expenditures (§§ 84200-84214). Gi Limitation of

expenditures in furtherance of circulation and qualification of

statewide petitions (§§ 85200-85202 [later Pema ye [4]

Information required to appear on statewide petitions (§ 86203

[later repealed]). [{] Limitation of expenditures for or against

pe

Consistent with our duty to uphold the people’s right

to initiative process, we adhere to the reasonably ger-

mane test and, in doing so, find that the measure before

us complies with the one subject requirement.

“The amendment of the California Constitution in

1911 to provide for the initiative and referendum

signifies one of the outstanding achievements of the

progressive movement of the early 1900’s. Drafted in

light of the theory that all power of government ulti-

mately resides in the prople, the amendment speaks

of the initiative and referendum, not as a right grant-

ed the people, but as a power reserved by them.

Declaring it ‘the duty of the courts to jealously guard

this right of the people’ (Martin v. Smith (1959) 176

Cal.App.2d 115, 117 [1 Cal.Rptr. 307]), the courts

have described the initiative and referendum as ar-

ticulating ‘one of the most precious rights of our

adoption of state ballot measures (§§ 85300-85305 [later

repealed]). My Requirements as to form and content of State

ot sag et “@ 88001-88002, 88004-88005). [{] Duties of

Secretary of State, Legislative Analyst and Legislative Counsel

regarding State ballot pamphlet (§§ 88000, 88005.5). [4]

Right of public to examine State ballot pamphlet prior to

rinting; judicial review of ballot pamphlet prior to printing (§

wi 3. Regulation of public official contlicts of interest. The

provisions of the Act dealing with this subject include —

pertaining to [{] Prohibition of actions by a public official to

influence governmental decisions in which he has a financial

interest (§§ 87100-87103). ") Required disclosure by public

officials of investments and interests in real property (§§

87200-87207). [{] Mandatory adoption of conflict of interest

codes by state agencies an New: pevermanonie agencies (88

87 312). [Q] 4. ope vaya of lobbyists. The provisions of the

Act dealing with this subject include regulations pertaining to [

no apo of lobbyists (§§ cc fag sf [{] Accounts requir

to be established and maintained by lobbyists (Ss 861 106).

q] Reporting of receipts and expenditures by lobbyists (§ 86107).

4] Prohibition of campaign contributions and limitations of gifts

y lobbyists (§§ 86205, § $6203). [{] Other | ae reggae imposed

— x byists regarding the practice of their profession (§

+

democratic process’ (Mervynne v. Acker, . . . 189

Cal.App.2d 558, 563). ‘[I]t has long been our judicial

policy to apply a liberal construction to this power

whereever it is challenged in order that the right be

not improperly annulled. If doubts can reasonably be

resolved in favor of the use of this reserve power,

courts will preserve it.’ (Mervynne v. Acker, supra,

189 Cal. App.2d 558, 563-564; Gaylev. Hamm, . . . 25

Cal.App.3d 250, 258.)” (Associated Home Builders

etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582,

591 (fns. omitted); Farley v. Healey (1967) 67 Cal.2d

325, 328.)

In keeping with the policy favoring the initiative, the

voters may not be limited to brief general statements

but may deal comprehensively and in detail with an area

of law.

Although the initiative measure before us is wordy

and complex, there is little reason to expect that claimed

voter confusion could be eliminated or substantially re-

duced by dividing the measure into four or ten separate

propositions. Our society being complex, the rules gov-

erning it whether adopted by legislation or initiative will

necessarily be complex. Unless we are to repudiate or

cripple use of the initiative, risk of confusion must be

borne.

Nor does the possibility that some voters might vote

for the measure—while objecting to some parts—war-

rant rejection of the reasonably germane test. Such risk

is inherent in any initiative containing more than one

sentence or even an “and” in a single sentence unless

the provisions are redundant. For example, the Jarvis-

« ie

Gann initiative (Cal.Const., art. XIII A) provided limita-

tions on property taxes and restrictions on state and

other local taxes. (See Amador Valley Joint Union High

Schl. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d

208.) Some property owners may have voted for the

measure primarily because of the property tax relief,

while having questions about the state and other local

tax restrictions. Similarly some nonproperty owners may

have voted for the initiative primarily because of the

restrictions on other state and local taxes, while having

reservations as to the property tax limitations.

The enactment of laws whether by the Legislature or

by the voters in the last analysis always presents the issue

whether on balance the proposed act’s benefits exceed

its shortcomings. If so, the remedy for shortcomings is

repeal, which will be difficult whether the law is adopt-

ed by the Legislature or the people. The difficulty of

repeal is merely one factor to be considered by legisla-

tors and voters when casting their votes.

Given the widespread public debate of initiatives, the

explanations in the ballot pamphlets and in the media,

and the huge volume of legislative business—over 1,000

bills enacted each year—it is unreasonable to assume

that initiative measures receive less scrutiny than

proposed legislation.

The people having reserved the legislative power to

themselves as well as having granted it to the Legisla-

ture, there is no reason to hold that the people’s power

is more limited than that of the Legislature, and the

single subject requirements applicable to both powers

(Cal.Const., art. II, § 8, subd. (d); art. IV, § 9) should not

—_

be used to establish inequality. (Cf. Associated Home

Builders etc. Inc. v. City of Livermore, supra, 18 Cal.3d

582, 591-592.) Accordingly, we adhere to the reasonably

germane test for both.

The provisions of the initiative are reasonably ger-

mane to the subject of political practices, and there is no

violation of the one subject requirement.

LOBBYIST REGULATION

A. Contributions

Section 86202 provides: “It shall be unlawful for a lob-

byist to make a contribution, or to act as an agent or

intermediary in the making of any contribution by him-

self or by any other person.” “Contribution” means a

“contribution made to a state candidate, a committee

supporting a state candidate, or an elected state officer.”

(§ 86200.) “‘ ‘Lobbyist’ means any person who is em-

ployed or contracts for economic consideration, other

than reimbursement for reasonable travel expenses, to

communicate directly or through his agents with any

elective state official, agency official or legislative offi-

cial for the purpose of influencing legislative or adminis-

trative action, if a substantial or regular portion of the

activities for which he receives consideration is for the

purpose of influencing legislative or administrative ac-

tion. No person is a lobbyist by reason of activities de-

scribed in Section 86300.”* (§ 82039.) There is no

prohibition against contributions by employers of lobby-

ists.

“ Section 86300 exempts certain activities ef governmental officials

and employees, the media, and church sepresentatives.

(EES oe AE ono OTe et ee Te

— i)

In Institute of Governmental Advocates v. Younger,

supra, 70 Cal.App. 3d 878, as pointed out earlier, the

Court of Appeal on First Amendment grounds invalidat-

ed a commission ruling based on section 86202, preclud-

ing lobbyists from advising their employers to make

political contributions.

In Buckley v. Valeo, supra, 424 US. 1, 23-38, the

United States Supreme Court considered the validity of

provisions of the Federal Election Campaign Act of 1971

as amended limiting the amount of political contribu-

tion by individuals to $1,000 for any candidate and $25,-

000 total. The court held that contribution limitations

restrict the contributor’s freedom of association, “a ‘ba-

sic constitutional freedom,’ Kusper v. Pontikes, 414 U.S.

at 57, that is ‘closely allied to freedom of speech and a

right which, like free speech, lies at the foundation of a

free society.’ Shelton v. Tucker, 364 U.S. 479, 486 (1960).

See, e.g., Bates v. Little Rock, 361 U.S. 516, 522-523

(1960); NAACP v. Alabama, supra, at 460-461; NAACP

v. Button, 371 U.S. at 452 (Harlan, J., dissenting).” (424

USS. at p. 25.)

The court pointed out that under our system of pri-

vate financing of elections, effective candidacy requires

large sums of money for the communication media and

mass mailing to allow effective discussion of candidacies

and campaign issues. (424 U.S. at pp. 26-29.) It is appar-

ent that unless an individual is permitted to participate

in the election by contributing to candidates, his politi-

cal voice may be quieted.

«a igea

The right to associate being fundamental, any govern-

mental action in curtailment of it “ ‘is subject to the

closest scrutiny.’ ” Recognizing that the right is not abso-

lute, the court said that significant interference may be

sustained if the “State demonstrates a sufficiently impor-

tant interest and employs means closely drawn to avoid

unnecessary abridgment of associational freedoms.”

(424 US. at p. 25.)

The court concluded that the government’s interest

in limiting actual or apparent corruption resulting from

large individual political contributions is sufficient justi-

fication for restricting associational freedoms and the

limitation “focuses precisely on the problem of large

campaign contributions—the narrow aspect of political

association where the actuality and potential for corrup-

tion have been identified.” (424 U.S. at pp. 24-29.)

However, the court also concluded the governmental

interest in preventing corruption and its appearance is

insufficient justification for limitations on political ex-

penditures. (424 U.S. at pp. 45-47; Hardie v. Eu, supra,

18 Cal.3d 371, 377; Citizens for Jobs & Energy v. Fair

Political Practices Com., supra, 16 Cal.3d 671, 674-675.)

A sufficiently compelling governmental interest justi-

fying substantial interference with political rights was

also found in CSC v. Letter Carriers (1972) 413 U.S. 548.

Upholding the Hatch Act limiting political activity of

governmental employees, the court identified three

governmental interests that could be harmed if govern-

mental employees could participate publicly in political

activities: (1) governmental employment and promo-

~—

tion might depend upon the extent of participation

rather than governmental efficiency, (2) the large num-

ber of governmental employees might become a huge

political machine defeating our democratic processes, |

and (3) partisan political activity might impair the em-

ployee’s ability to act fairly without bias or favoritism.

(413 U.S. at pp. 564-567.)

Obviously, the prohibition against lobbyist contribu-

tions in section 86200 is a substantial restriction on the

lobbyists’ freedom of association, and the restriction may

be upheld only if the “State demonstrates a sufficiently

important interest and employs means closely drawn to

avoid unnecessary abridgment of associational free-

doms.” (Buckley v. Valeo, supra, 424 U.S. 1, 25.) The

statute fails to meet the test.

The claimed state interest is to rid the political system

of both apparent and actual corruption and improper

influence. Under Buckley such a purpose justifies closely

drawn restrictions. However, it does not appear that

total prohibition of all contributions by any lobbyist is a

closely drawn restriction.

First, the prohibition applies to contributions to any

and all candidates even though the lobbyist may never

have occasion to lobby the candidate. Secondly, the defi-

nition of lobbyist is extremely broad, to include persons

who appear regularly before administrative agencies

seeking to influence administrative determinations in

favor of their clients. Thirdly, the statute does not dis-

criminate between small and large but prohibits all con-

tribution. Thus, it is not narrowly directed to the aspects

of political association where potential corruption might

be identified.

» 1D=

While either apparent or actual political corruption

might warrant some restriction of lobbyist associational

freedom, it does not warrant total prohibition of all con-

tributions by all lobbyists to all candidates.

The governmental interests held to warrant substan-

tial restrictions on political rights in CSC v. Letter Carri-

ers, supra, 413 U.S. 548, have no greater application to

lobbyists than to other private campaign contributors.

Section 86202 is invalid because it is not “closely

drawn to avoid unnecessary abridgment of associational

freedoms.” (Buckley v. Valeo, supra, 424 U.S. 1, 25.) This

makes it unnecessary to discuss whether the section re-

sults in a denial of equal protection.

B. Gifts and Other Lobbyist and Employer Regulations

Lobbyists are prohibited from making gifts of more

than $10 in any month to any state candidate, a legisla-

tive agency or elective state official or from participat-

ing in gifts by any other person. (§§ 86201, 86203.)

Lobbyists are also required to register and to report all

payments for lobbying activities, the names of those sup-

plying the funds and the amounts they furnished, dis-

bursements from the funds received, and any

transactions with candidates or legislative agency, or

state elective officials or their families. (§4 86100-86107.)

Lobbyists’ reports must include any transaction totalling

$500 or more in a single year with business entities in

which the lobbyist knows or has reason to know that any

state candidate, or legislative, agency, or elective official

is a proprietor, partner, director, officer or manager or

—

has more than a 50 percent interest. (See, § 86107, subd.

(e).) Lobbyists must also report a “specific description

of legislative or administrative action which the lobbyist

has influenced or attempted to influence, and the agen-

cies involved, if any.” (§ 86107, subd. (f).)

Persons who employ a lobbyist or pay $250 in any

month to influence legislative or administrative action

must also file reports. Among other matters, the reports

must disclose businesses engaged in, the total amount of

payments to influence legislative or administrative ac-

tion, any contributions made, the names of persons who

received $25 or more, and a specific description of legis-

lative or administrative action sought to be influenced.

(§ 86109.) The transaction reporting requirement dif-

fers from that applicable to lobbyists, applying only to

transactions totalling more than $1,000 per year. (Jd,

subd. (d) (e).)

Among the fundamental rights guaranteed by the

First Amendment to the United States Constitution is

the right to “petition the Government for a redress of

grievances.” The lobbyist’s function obviously is to exer-

cise such right on behalf of his employer. The chal-

lenged statutes do not directly limit or restrict the right

to petition. Rather, the registration and reporting re-

quirements impose burdens on the right to petition, and

the gift limitation affects the form of the petition. All

may petition provided they bear the burden of registra-

tion and reporting and do not offer excessive gifts.

Advocates claims that because speech and petition

rights are affected, the strict scrutiny rule is applicable.

a Ws

Although a fundamental interest may be involved,

both the United States Supreme Court and this court

have recognized that not every limitation or incidental

burden on a fundamental right is subject to the strict

scrutiny standard. When the regulation merely has an

incidental effect on exercise of protected rights, strict

scrutiny is not applied. (E.g., Zablocki v. Redhail (1978)

98 S.Ct. 673, 681-683 [regulations affecting the right to

marry]; Califano v. Jobst (1977) 98 S.Ct. 95, 99 [same];

Kash Enterprises, Inc. v. City of Los Angeles (1977) 19

Cal.3d 294, 303-305 [reasonable limitations on placement

of newspaper racks]; Gould v. Grubb (1975) 14 Cal.3d

661, 670 [rational basis standard applicable to numerous

statutes detailing the mechanisms of the right to vote].)

It is only when there exists a real and appreciable impact

on, or a significant interference with the exercise of the

fundamental right that the strict scrutiny doctrine will

be applied. (Zablocki v. Redhail, supra, 98 S.Ct. 673, 681;

Gould v. Grubb, supra, 14 Cal.3d 661, 670.)

In United States v. Harriss (1953) 347 U.S. 612, 625-

626, the court upheld the Federal Regulation of Lobby-

ing Act which required lobbyists to report lobbying re-

ceipts and expenditures against challenges that it

violated the guarantees of freedom to speak, publish,

and petition. Pointing out that Congress had not sought

to prohibit lobbying, the court concluded that Congress

has a valid interest in determining the source of voices

seeking to influence legislation and could reasonably

require the professional lobbyist to identify himself and

disclose his lobbying activities. This court has also

— =

upheld reasonable statutes requiring disclosure of finan-

cial activities of persons engaged in political processes.

(Brown v. Superior Court (1971) 5 Cal.3d 509, 519-523:

cf. County of Nevada v. MacMillen (1974) 11 Cal.3d 662,

670-672. )

As pointed out above, the registration, reporting, and

gift provisions are not direct limitations on the right to

petition for redress of grievances. Application of the

burdens of registration and disclosure of receipts and

expenditure to lobbyists does not substantially interfere

with the ability of the lobbyist to raise his voice. While

the burden of disclosure might be substantial for those

engaging in extensive lobbying activities, the burden is

not great when viewed in the context of the total activi-

ties engaged in. Requiring a person engaged in a busi-

ness to describe it and to report its receipts and expenses

may not be viewed in our commercial society as a sub-

stantial impediment to engaging in that business.

Similarly, the burden piaced on employers of lobbyists

to disclose their expenditures for lobbying purposes, and

the action thereby sought to be influenced, does not

constitute a substantial interference with the exercise of

petition and speech rights.

On the basis of Harriss and Brown, we sustain the

validity of the provisions requiring the registration of

lobbyists and their employers and the reporting of lob-

bying receipts, expenditures, and activities and employ-

ers’ businesses.

The limitation on lobbyist gifts, affecting only the

form of the petition, also does not have a real and appre-

ciable impact on the legitimate exercise of the rights of

«= 1.

petition and speech, and the strict scrutiny test is inap-

plicable. !

On the other hand, the transaction reporting require-

ments will often be so onerous as to constitute a signifi-

cant interference with the fundamental right to

petition. The extent of reporting required is not directly

related to the extent of lobbying activities but is deter-

mined mainly by lobbyist and employer transaetions

with others, which may be entirely unrelated to lobbyist

activities. For example, the reporting requirement as to

business transactions applies to transactions with a busi-

ness entity where any state candidate, or legislative,-

agency, or elective state official is a director. (§ 86109,

subd. (e).) Accordingly, if a director of the Bank of

America is also an agency official—perhaps a Regent of

the University of California—a lobbyist and any person

who employs a lobbyist or spends more than $250 in a

single month to influence legislative or administrative

Action must disclose transactions above the statutory

amount with the Bank of America. The requirement

applies even though the lobbying activities have noth-

ing to do with the university or banks. Because directors

of many major corporations serve on boards and other

administrative agencies, the transaction reporting re-

quirement may be extremely burdensome, and persons

and business, union or other organizations who only seek

to influence governmental action on an isolated basis

will be deterred from doing so by the burdensome re-

porting requirements.

«

Because the transaction reporting requirements will

often constitute a significant interference with the fun-

damental right to petition, the strict scrutiny doctrine is

applicable. The requirements may be upheld only if the

state demonstrates sufficiently important interests and

the statute “is closely tailored to effectuate only those

interests.” (Zablocki v. Redhail, supra, 98 S.Ct. 673, 682;

Buckley v. Valeo, supra, 424 U.S. 1, 25.) Even if the

compelling state interest is present, the restriction on

First Amendment activities must be drawn with narrow

specificity to avoid arbitrary and unnecessary curtail-

ment of the protected freedom. (Kash Enterprises, Inc.

v. City of Los Angeles, supra, 19 Cal. 3d 294, 303; Fort v.

Civil Service Com. (1964) 61 Cal. 2d 331, 337-338.)

We have considered the validity of disclosure require-

ments of financial activities of public officials and em-

ployees and held invalid a statute which “would intrude

alike into the relevant and the irrelevant private finan-

cial affairs. . . and is not limited to only such holdings

as might be affected by the duties or functions of a par-

ticular office.” (City of Carmel-By-The-Sea v. Young

(1970) 2 Cal. 3d 259, 272; County of Nevada v. MacMil-

len, supra, 11 Cal. 3d 662, 671.) We are satisfied that the

right to petition for redress of grievances similarly may

not be conditioned upon disclosure of irrelevant private

financial matters unrelated to the petition activity. Be-

cause the transaction reporting requirements apply to

transactions having no relation to the lobbying activities,

they are not “closely tailored” to any legitimate state

interest in the regulation of lobbying but constitute an

unnecessary curtailment of the right to petition.

=

CONCLUSION

In sum, we conclude: The prohibition against lobbyist

contributions set forth in section 86202 is a substantial

limitation on associational freedoms guaranteed by the

First Amendment, and is invalid. The right to petition

for grievances guaranteed by the First Amendment may

not be conditioned on disclosure of private financial

matters irrelevant to the petition activity and section

86107, subdivisions (d) and (e) and section 86109, sub-

divisions (d) and (e) are therefore invalid. However,

the other reporting requirements, the registration re-

quirements, and the limitation on gifts do not constitute

substantial limitations on petition and speech rights, and

the challenge to those provisions is rejected. Finally, the

Political Reform Act of 1974 does not involve multiple

subjects in violation of California Constitution, article II,

section 8, subdivision (d). |

Let a writ of mandate issue directing respondent

court to vacate its judgment and to enter judgment in

accordance with the views expressed herein.

Clark, J.

WE CONCUR:

Mosk, J.

Richardson, J.

~ 99-—

FAIR POLITICAL PRACTICES COMM. v.

SUPERIOR COURT L.A. 30904

CONCURRING OPINION BY TOBRINER, J.

In Schmitz v. Younger (1978) 21 Cal.3d 90, I joined

Justice Manuel’s dissenting opinion, which concluded

(1) that “the special nature of the initiative process re-

quires a narrower construction” of the one subject re-

quirement than the limitation on legislative bills, and

(2) that “to satisfy the one-subject requirement, an initi-

ative’s provisions must be functionally related in fur-

therance of a common underlying purpose.” (21 Cal.3d

at pp. 99-100.) I continue to adhere to that position

today. Unlike Justice Manuel, however, I believe that

the 1974 Political Reform Act satisfies the standard

enunciated in the Schmitz dissent. Accordingly, I agree

with the majority that the lower court erred in invalidat-

ing the entire act. With respect to the remaining issues,

I join in the majority’s analysis and conclusions.

Tobriner, J.

~~

FAIR POLITICAL PRACTICES COMM. v.

SUPERIOR COURT L.A. 30904

CONCURRING AND DISSENTING OPINION BY

NEWMAN, J.

I agree with the majority’s conclusion that the single

subject rule has not been violated. I do not agree,

however, that enforcement of sections 86202, 86107, sub-

divisions (d) and (e), and 86109, subdivisions (d) and

(e) of the Political Reform Act of 1974! should be en-

joined.

In my view the majority opinion does not adequately

advise California legislators and citizens generally as to

their powers to regulate lobbying.

Language reading substantially as follows has been

part of the California Constitution for 100 years: “A per-

son who seeks to influence the vote or action of a mem-

ber of the Legislature in the member’s legislative

capacity by bribery, promise of reward, intimidation, or

other dishonest means, or a member of the Legislature

so influenced, is guilty of a felony.” (Art. IV, § 15.) In

1972 the electors commanded additionally that “[t]he

Legislature shall. . . provide for. . . free elections” and

“shall prohibit improper practices that affects elections

.... (Art. II, $3 and § 4.) Two years later, apparently

because they believed that regulations complementing

the constitutional language were essential, the electors

via the initiative approved the Political Reform Act of

1974.

‘ Government Code section 81000 et seq.

ao 94...

The majority opinion states, “The claimed state inter-

est is to rid the political system of both apparent and

actual corruption and improper influence.” (Ante, p.

——.)* That is an unconscionably bowdlerized para-

phrase of complex aims that in the initiative measure

were declared to be as follows (and note especially the

declaration that “[p]revious laws regulating political

practices have suffered from inadequate enforcement

by state and local authorities” 2):

“The people find and declare as follows:

(a) State and local government should serve the

needs and respond to the wishes of all citizens equal-

ly, without regard to their wealth;

“(b) Public officials, whether elected or appoint-

ed, should perform their duties in an impartial man-

ner, free from bias caused by their own financial

interests or the financial interests of persons who

have supported them;

“(c) Costs of conducting election campaigns have

increased greatly in recent years, and candidates

have been forced to finance their campaigns by seek-

ing large contributions from lobbyists and organiza-

tions who thereby gain disproportionate influence

over governmental decisions;

“(d) The influence of large campaign contribu-

tors is increased because existing laws for disclosure

of campaign receipts and expenditures have proved

to be inadequate;

“(e) Lobbyists often make their contributions to

* Typed opinion, page 17.

* Compare Newman, Legal Aspects of Representation, California

Laws on Lobbying, Legislators’ Orientation Conference (1959)

pages 125-130.

=— =

incumbents who cannot be effectively challenged

because of election laws and abusive practices which

give the incumbent an unfair advantage;

“(f) The wealthy individuals and organizations

which make large campaign contributions frequent-

ly extend their influence by employing lobbyists and

spending large amounts to influence legislative and

administrative actions;

“(g) The influence of large campaign contribu-

tors in ballot measure elections is increased because

the ballot pamphlet mailed to the voters by the state

is difficult to read and almost impossible for a layman

to understand; and

“(h) Previous laws regulating political practices

have suffered from inadequate enforcement by state

and local authorities.” (Gov. Code, § 81001.)

“The people enact this title to accomplish the fol-

lowing purposes:

“(a) Receipts and expenditures in election cam-

paigns should be fully and truthfully disclosed in or-

der that the voters may be fully informed and

improper practices may be inhibited; _

“(b) The amounts that may be expended in state-

wide elections should be limited in order that the

importance of money in such elections may be re-

duced;

“(c) The activities of lobbyists should be regulat-

ed and their finances disclosed in order that improp-

er influences will not be directed at public officials;

“(d) Assets and income of public officials which

may be materially affected by their official actions

should be disclosed and in appropriate circumstances

the officials should be disqualified from acting in or-

der that conflicts of interest may be avoided;

— =

“(e) The state ballot pamphlet should be convert-

ed into a useful document so that voters will not be

entirely dependent on paid advertising for informa-

tion regarding state measure;

“(f) Laws and practices unfairly favoring incum-

bents should be abolished in order that elections may

be conducted more fairly; and

“(g) Adequate enforcement mechanisms should

be provided to public officials and private citizens in

order that this title will be vigorously enforced.”

(Gov. Code, § 81002.)

“This title should be liberally construed to accom-

plish its purposes.” (Gov. Code, § 81003.)

Who are lobbyists? The majority opinion correctly

quotes section 82039 as follows: “ ‘Lobbyist’ means any

person who is employed or contracts for economic con-

sideration, other than reimbursement for reasonable

travel expenses, to communicate directly or through his

agents with any elective state official, agency official or

legislative official for the purpose of influencing legisla-

tive or administrative action, if a substantial or regular

portion of the activities for which he receives considera-

tion is for the purpose of influencing legislative or ad-

ministrative action. No person is a lobbyist by reason of

activities described in Section 86300.” Not mentioned,

however, is section 82002, which tells us that “ “[a]dmi-

nistrative action’ means the proposal, drafting, develop-

ment, consideration, amendment, enactment or defeat

by any state agency of any rule, regulation or other ac-

tion in any rate-making proceeding or any quasi-legisla-

tive proceeding, which shall include any proceeding

governed by Chapter 4.5 of Division 3 of Title 2 of the

oa OT em

Government Code (beginning with Section 11371).”

That definition, I think, disposes of the majority’s com-

ment that “the definition of lobbyist is extremely broad,

to include persons who appear regularly before adminis-

trative agencies seeking to influence administrative

determinations in favor of their clients.” (Majority opn.,

ante, p. .)* In other words, and presumably because

rule making is comparable to statute making,® the elec-

tors approved the regulation of administrative as well as

legislative lobbying. I do not regard that as unreasona-

ble, and I do not agree that “[t]he governmental inter-

ests held to warrant substantial restrictions on political

rights . . . have no greater application to lobbyists than

to other private campaign contributors.” (Id., p.___.) **

Nor do I accept the majority’s suggestion that prohibi-

tion of contributions is suspect when “the lobbyist may

never have occasion to lobby the candidate.”

(Id., p.—.)* What if the candidate is a relative, a friend,

or a potential colleague, political or professional, of per-

sons whom the lobbyist does intend to lobby? The search

for “disproportionate influence over governmental

decisions” (Gov. Code, § 81001, subd. (c)) can cause

campaign funds to flow in channels that become labyrin-

thine, producing effects that sometimes seem almost

subliminal.

°“Rulemaking is the administrative counterpart of what a

legislative body does when it enacts a statute.” (Davis,

Administrative Law and Government (2d ed. 1975) p. 118.)

* Typed opinion, page 17, last paragraph.

** Typed opinion, page 18.

* Typed opinion, page 17.

~ 28-

How, I wonder, do the following words from the ma-

jority opinion enlighten legislators and citizens? “[T]he

statute [Gov. Code, § 86202] does not discriminate

between small and large but prohibits all contribution.

Thus, it is not narrowly directed to the aspects of politi-

cal association where potential corruption might be

identified.” (Majority opn., ante, p._.)** As I indicated

above, to imply that “corruption” was the sole evil the

electors sought to eradicate seems simplistic, almost

quaint.

The Political Reform Act of 1974 is not a prototype of

sapient drafting. Section 81012 does, however, anticipate

possible needs for amendment. Given the complex find-

ings, declarations, and statements of purpose that the

electors chose to set forth in sections 81001 and 81002,

ante, | contend that courts are best advised to await

further legislative consideration. They should not comb

the law now for clauses that, under varying opinions of

the United States Supreme Court (particularly as to

“strict scrutiny”), in a more routinely motivated law

might be categorized as insufficiently “tailored.” The

majority opinion, for instance, so labels clauses that ar-

guably involve “irrelevant private financial matters un-

related to the petition activity.” (Ante, p.—.)* To

achieve the declared and legitimate aims of the law

before us in this case, I submit that defining the appro-

priate borderlines of that kind of relevance is a task best

assigned to legislators and administrators, not judges.

NEWMAN, J.

** Typed opinion, page 17.

* Typed opinion, page 25.

~~ =

FAIR POLITICAL PRACTICES COMM. v.

SUPERIOR COURT L.A. 30904

DISSENTING OPINION BY MANUEL, J.

I dissent. In my view the trial court correctly held that

the 1974 Political Reform Act is invalid and void in its

entirety because it embrac[es] more than one subject”

in violation of the provisions of article II, section 8, sub-

division (d) of the state Constitution, the so-called single

subject rule. Accordingly, I would deny the writ.

It has now been more than 30 years since this court,

in the case of McFadden v. Jordan (1948) 32 Cal.2d 330,

carefully laid to rest the notion that the initiative power

of the people, by virtue of its unique and precious nature

as well as its consitutional source, is to be considered free

of all constitutional constraints on its exercise. In my

view the majority, by applying the single subject rule in

a manner which is tantamount to its nullification, has

today taken a significant step toward the resurrection of

that notion.

In the McFadden case, which must form the basis of

any proper understanding of the initiative single subject

rule, we were faced with an initiative proposal consist-

ing of 12 separate sections and 208 subsections which, in

the compass of more than 21,000 words, treated a wide

variety of subjects ranging from reapportionment to

oleomargarine. Although we noted the dangers inher-

ent in such a manner of presentation,! the Constitution

' “The proposal,” we said “is offered as a single amendment but it

obviously is multifarious. It does not give the people an

opportunity to express approval or disapproval severally as to

each major change suggested; rather does it, apparently, have

the purpose of aggregating for the measure the favorable votes

from electors of many suasions who, wanting strongly enough

. 0.

at that time contained no provision precluding it, and

we were therefore unable to ground our decision direct-

ly on this point. Because, however, of the comprehen-

sive scope and effect of the proposal viewed as a whole,

we concluded that it amounted to a revision of the Con-

stitution, which by express provision could be accom-

plished only through the convening of a constitutional

convention prior to submission to the people for ratifica-

tion.

The initiative single subject rule, now contained in

article II, section 8, subdivision (d) of the Constitution,

is a direct outgrowth of the McFadden decision. The

1948 Legislature, obviously perceiving that some future

“multifarious” initiative might not be so comprehensive

as to amount to a constitutional revision, and obviously

being mindful of the dangers to which we had adverted,

caused to be placed on the November 1948 general elec-

tion ballot what subsequently became, following ap-

proval by the voters by a margin of more than two to

one, former article IV, section 1, subdivision (c) of the

Constitution, which was reenacted by the voters in its

present form as a part of the 1966 constitutional revision.

For reasons which I have set out at length in my dis-

senting opinion in Schmitz v. Younger (1978) 21 Cal.3d

9), at pages 96-101, I am of the view that the mandate

of article II, section 8, subdivision (d) is satisfied only

when the provisions of an initiative measure can be said

to be “functionally related in furtherance of a common

underlying purpose.” (21 Cal.3d at p. 97.) This standard,

any one or more propositions offered, might grasp at that which

they want, tacitly accepting the remainder. Minorities favorin

each proposition severally might, thus aggregated, adopt all.” (3

Cal.2d at pp. 346.)

Pa Ratatat er 8

~~ =

which has recently been applied by this court in Amador

Valley Joint Union High Sch. Dist. v. State Bd. of Equali-

zation (1978) 22 Cal.3d 208, 230, accurately reflects the

meaning of the initiative single subject rule in light of its

history, and for this reason it is to be preferred in the

initiative context to the broader, more vague “reason-

ably germane” test which is applicable in the context of

legislative statutes.? As I proceed to explain, however, I

am persuaded that the measure now before us fails ei-

ther test.

Turning to the measure itself we find at the outset

that it is of prodigious physical proportions. Containing

11 separate chapters and 215 sections, its text covered

over 16 closely packed pages of the voter’s pamphlet for

the June 1974 Primary Election, and its printing in one

edition of the annotated codes requires no less than 131

pages. (37B West’s Ann. Gov. Code (1976 ed.) §§ 81000-

91014, pp. 3-134.) As enacted, it was comprised of more

than 20,000 words—or approximately 1,000 less than the

? It is notable in this respect that the legislative single — rule,

unlike that applicable in the case of initiatives, se ates only

a partial null cation in the event of violation. Article IV, section

9 provides: “A statute shall embrace but one subject, which shall

be expressed in its title. If a statute embraces a subject not in its

title, only the part not expressed is void.” (Italics added.) Article

II, section 8, subdivision (d), on the other hand, provides: “An

initiative measure embracing more than one subject may not be

submitted to the electors or have any effect. (Italics added.) The

concern in the legislative context is thus whether a proposed

statute contains material extraneous or not “reasonably

germane” to the subject stated in the title; if it does, the

extraneous material is simply stricken. In the initiative context,

on the other hand, the issue is more sharply defined: a measure

whose parts are not functionally related to a common subject or

purpose is to be accorded no effect. In the one case, then, we seek

only to exclude the extraneous; in the other, it is the validity of

the whole which is at stake.

+. =

measure which we confronted in the McFadden case.

Although there is no specific constitutional limit on the

size of an initiative measure,’ it might be expected that

one requiring this amount of legal technical verbiage

would undertake to address itself to more than one “‘sub-

ject.” Such expectations, as I point out below, are in this

case not held in vain.

It is interesting to note that the parties supporting the

instant measure seem to have some difficulty agreeing

upon the identity of the “single subject” which it is as-

serted to comprehend. Thus petitioner Fair Political

Practices Commission claims that the initiative “con-

cern{s] ... the reform and integrity of the political proc-

ess.” Amici curiae Common Cause, League of Women

Voters and Sierra Club, on the other hand, appear to

change the focus somewhat, asserting at oral argument

that the “single subject” is that of “making government

more accountable by diminishing the influence of

wealth on governmental processes.” A brief filed by

other amici curiae in support of the measure identifies

the prevention of “deceptive practices” as its subject

matter, while the Attorney General, who has filed a

return in support of the petition for mandate, prefers to

speak simply in terms of “political reform.” It is not

surprising, in my view, that such a lack of unanimity

* It is noteworthy that one commentator, addressing himself to the

physical proportions of the measure here in question, was led to

conclude: “Even though the Political Reform Act [of 1974] was

successful, it is highly unlikely that the voters understood even

a substantial portion of the Act.” (Note, The California Initiative

Ae ag F Suggestion for Reform (1975) 48 So.Cal.L.Rev. 922,

» In. 65.)

+t awne ca

—

should appear, for all of the aforesaid formulations speak

not to the matter of the measure’s subject but rather to

the general policy objectives it seeks to achieve as a

result of the comprehensive legislative program it

represents. In short, the parties’ difficulty in expressing

the “single subject” of the Political Reform Act of 1974

results from the simple fact that there is no single sub-

ject; rather the measure speaks to a multitude of subjects

which, by means of a broad statement of policy objec-

tive, the parties seek to place under a single umbrella.‘

The single subject rule, however, is not concerned with

umbrellas; it is concerned with subjects.

No purpose would here be served by undertaking a

listing of what I conceive to be the various subjects com-

prehended in the measure before us. It suffices, I think,

to point out the obvious: The regulation of the election

process, no matter how broadly defined, has little to do

with the regulation of the day-to-day activities of lobby-

*To be distinguished from the instant situation, I believe, it that

which was recently before us in the so-called “Proposition 13

cases” (Amador Valley Joint Union High Sch. Dist. v. State Bd.

of Equalization, supra, 22 Cal.3d 208). Although the measure

there in question had four major elements—a real property tax

rate limitation, a real property assessment limitation, a

restriction on state taxes, and a restriction on local taxes—we

—— out that each was part of “an interlocking ‘package’

eemed necessary by the initiative’s framers to assure effective

real pooee: tax relief,” i.e., real property tax savings which

could not be “withdrawn or depleted by additional or increased

local levies of other than property taxes. .. .” (22 Cal.3d at p. 231.)

In this respect we contrasted the case of Kerby v. Luhrs (1934)

44 Ariz. 208, a measure dealing with diverse matters relating to

“taxation.” (Jd. at 231-232.) In my view the measure here before

us, similarly dealing in diverse ways with various practices under

the road banner of “political reform,” should share the fate of the

Arizona “taxation” initiative.

—"

ists. The adoption of codes governing conflicts of inter-

est in all state agencies—the provisions of such codes to

affect any employee occupying a position which “in-

volve[s] the making of decisions which may foreseeably

have a material effect on any financial interest”’ (§ 87302,

subd. (a))—is yet another matter. Although each of

these might conceivably form a part of a unified legisla-

tive program directed toward the policy objective of

“political reform,” each concerns an entirely different

and discrete subject.

I do not of course suggest that the single subject re-

quirement of our Constitution precludes the presenta-

tion to the electorate, on a single ballot, of a number of

related subjects in furtherance of some underlying pol-

icy objective. What I do suggest is that when this is done,

our Constitution requires that each subject be separate-

ly set out by means of an independent proposition, so

that voters favoring one aspect of the program but op-

posed to another may have the opportunity to accurate-

ly reflect these views in their votes. Any other result, I

submit, has the effect of transforming what has been

termed the “legislative battering ram” of the initiative

(see Amador Valley Joint Union High Sch. Dist. v. State

Bd. of Equalization, supra, 22 Cal.3d 208, 228, 229, 232)

into a legislative blunderbuss.

I would deny the writ.

Manuel, J.

—

FAIR POLITICAL PRACTICES COMM. v.

SUPERIOR COURT L.A. 30904

DISSENTING OPINION BY BIRD, C.J.

I cannot agree with the pinched view of the First

Amendment which the majority adopt in declaring un-

constitutional Government Code section 86202 and sub-

divisions (d) and (e) of Government Code sections

86107 and 86109. In one fell swoop, this court has gutted

the Political Reform Act of 1974, which ended the undue

influence of lobbyists and moneyed interests over our

state government. Today’s decision moves California

farther from, not closer to, a First Amendment society

where individuals are able to speak meaningfully with

their public representatives and be heard. Once again,

“money will be the mother’s milk of politics” with the

third house owning the dairy.

In Buckley v. Valeo (1976) 424 U.S. 1, the United

States Supreme Court recognized that the realities of

modern campaigning drives candidates to depend more

and more on large campaign contributors. The court

recognized that this dependence meant that democracy

would not be served if wealthy benefactors controlled

elected officials. The Buckley court was concerned that

there inevitably lingered “the appearance of corruption

stemming from public awareness of the opportunities

for abuse inherent in a regime of large individual finan-

cial contributions.” (Jd. at p. 27.) Antithetical to the

very idea of representative democracy, the Supreme

Court noted, is “the actuality and appearance of corrup-

tion resulting from large individual financial contribu-

=

tions [was]. . . a constitutionally sufficient justification”

for placing a limit of $1,000 on campaign contributions.

The California Political Reform Act aims at freeing

government and its officials from the actuality or ap-

pearance of corruption. Instead of imposing contribu-

tion limits on everyone as in the Buckley case, the

California law zeroes in on the age old problem of lobby-

ist money. The abuse inherent in having persons paid to

influence state policy pass money to the formulators of

state policy is all too apparent.

The majority find section 86202 overbroad because it

(1) prohibits “small” as well as “large” contributions;

(2) prohibits contributions to state candidates ther

than those whom the lobbyist is trying to influence; and

(3) includes lobbying before state administrative agen-

cies as well as elected officials in state government. The

majority choose to ignore the fact that there is a height-

ened threat to the image and integrity of state govern-

ment which results when a lobbyist can use money to

purchase influence.

The majority’s distinction between “large” and

“small” campaign contributions misreads Buckley. The

federal election laws themselves contain a tota/ ban on

large or small campaign contributions from corpora-

tions, unions, and national banks to any candidate for

federal office. (2 U.S.C. 441b.) These prohibitions have

been held to be constitutional. (See, e.g., United States

v. Chestnut (S.D.N.Y. 1975) 394 F.Supp. 581, 587-591;

United States v. Boyle (D.C. Cir. 1973) 482 F.2d 755,

763-764.) Even the United States Supreme Court “has

ah ne Satna tere Ee

ee a es

~ ane

repeatedly recognized that one of the principal pur-

poses of [the] prohibition is ‘to avoid the deleterious

influences on . . . elections resulting from the use of

money by those who exercise control over large aggre-

gations of capital.’ United States v. Automobile Workers,

352 U.S. 567, 585 (1957). See Pipefitters v. United States,

407 US. 385, 415-416 (1972); United States v. CIO, 335

US., at 113.” (First National Bank of Boston v. Bellotti

(1978) 435 U.S. 765, 812, dis. opn. of White, J.)

It has never been held to be too drastic to ban corpo-

rate and union campaign contributions. Rather, the

courts have emphasized that the statutes allow corpora-

tions and unions to establish segregated political funds

to which they may solicit voluntary contributions and

from which they may make campaign contributions.

(See United States v. Chestnut, supra, 394 F.Supp. at p.

591.) The narrow reach of California’s ban on lobbyist

contributions is similar. The employers of lobbyists are

free to contribute as they please to political candidates.

Lobbyists may recommend to their employers to whom

they should contribute and in what amounts. (Institute

of Governmental Advocates v. Younger (1977) 70 Cal.

App.3d 878, 884.) Further, lobbyists are free to express

their own personal preferences in politics, except they

cannot make campaign contributions or certain size

gifts to candidates for state office.

Section 86202 attempts to prevent the actuality or ap-

pearance of public officials as the captive of special in-

terest groups by removing from lobbyists the ability to

buy the ear of state officials with money. The people

a

have every right to prevent the venal spectacle of lobby-

ists passing money to candidates or officials whose acts

they want to influence. This compelling state interest

was accomplished by placing restrictions on lobbyist

contributions and gifts to officeholders.’

The narrow restrictions of the Political Reform Act

pale beside the restrictions of the Hatch Act on federal

employees. Those who come within the confines of the

Hatch Act are prohibited from taking “an active part in

political management or in political campaigns.” This

results in a ban on just about all partisan political activity

by federal employees. Despite this fact, the United

States Supreme Court has found the Hatch Act constitu-

tional on two occasions. (CSC v. Letter Carriers (1973)

413 U.S. 548; United Public Workers v. Mitchell (1947)

330 U.S. 75.) The prohibition on partisan political activ-

ity by federal employees was held to be justified by the

government’s compelling interest in preserving the civil

service from the corruption that might result if one’s job

came to depend on one’s politics. (CSC v. Letter Carri-

ers, supra, 413 U.S. at pp. 564-567.)

In Letter Carriers, the United States Supreme Court

acknowledged that the federal government’s interest in

preserving its own integrity was sufficient to justify res-

‘ If section 86202 had been written so as to allow a lobbyist to express

his personal views about a candidate by contributing his own

personal money as opposed to his mag Sag that exception

would have lendinend the law a nullity from the Rte

Special interest groups employing lobbyists could have simply

increased their lobbyists’ salaries, on the tacit understanding that

the lobbyist would use that extra money to make campaign

contributions.

—

trictions on the First Amendment rights of federal em-

ployees. Similarly, the state government’s interest in

preserving its own integrity is equally compelling. If the

Hatch Act prohibitions survived strict scrutiny, the less

restrictive Political Reform Act prohibitions on lobbyists

certainly should.

The majority misuse the Buckley case and refer out of

context to the special problems involved with “large”

political contributions. The court was reviewing a stat-

ute which restricted the amount of money anyone could

contribute in a federal election. Consequently, the Su-

preme Court focused on the corruption inherent in the

dependence of candidates on large contributions. Buck-

ley does not indicate that dependence on large contribu-

tions is the only fertile source of corruption. The

majority err when they apply the language of Buckley

to a new fact situation without considering the nature of

lobbying.

Lobbyists are employed by special interest groups to

achieve a particular result. They are successful only to

the extent they are able to influence the vote or policy

of legislators or public officials. Lobbyists are paid to

advocate their employers’ viewpoint. The employers

are usually “big money” interests. Daily contact with

those they seek to influence is essential.

Lobbyists set about their task of influencing govern-

ment officials by establishing personal contact. Obvious-

ly, the ability to give gifts, buy lunches, contribute to

campaigns helps a lobbyist ensure that his invitations to

talk over matters with public officials are accepted. Ac-

- 40-

cess is the key to influence. Having opened the door, the

campaign contribution whether large or small is in a

position to speak not only for itself but to deliver a mes-

sage amplified by the resources of the special interest

groups employing the lobbyists. Special interest groups

employ lobbyists because such groups believe the great-

er the access they have to state officials, the greater the

possibility that these officials will reflect their viewpoint.

The giving of a campaign contribution, regardless of

size, is sufficient to establish the necessary access.

The unfettered access of a lobbyist to state officials can

defeat the basic idea of a society that is based on elective

officials who represent a// the people. The parties to this

litigation stipulated that prior to the passage of the Polit-

ical Reform Act, lobbyists regularly purchased meals

and drinks for state officials; provided hunting, fishing

and vacation trips for officials and their families; pur-

chased liquor, art work and golf clubs; held weekly gath-

erings at which meals, drinks and entertainment were

provided; and had complete control over the campaign

funds of their employers, which included the power to

determine who and how much an official would receive

in political contributions.

“[S]ome lobbyists engaged in the practices enumer-

ated [above] for the purpose of gaining undue influ-

ence over legislators and state officials.”

The United States Supreme Court many years ago

upheld the Federal Regulation of Lobbying Act and

recognized that “the voice of the people may all too

easily be drowned out by the voice of special interest

C—O

|

groups seeking favored treatment while masquerading

as proponents of the public weal.” (United Sates v. Har-

riss (1954) 347 U.S. 612, 625.) In 1974, the voters of this

state decided to insulate state officials from lobbyists and

their undue influence by removing from them the abili-

ty to “buy” access and good will by dispensing gifts and

contributions.

The First Amendment has never precluded our citi-

zens from taking action to restore integrity to state gov-

ernment by achieving a certain balance between the

access of the individual citizen and the access of the

lobbyist to public representatives.

The majority opinion invalidates section 86202 based

on the fact that the “prohibition applies to contributions

to any and all candidates even though the lobbyist may

never have occasion to lobby the candidate.” (Maj. opn.,

ante, at p. — [ typed maj. opn. at p. 17].) How can this

fact justify invalidating section 86202? “Facial over-

breadth has not been invoked when a limiting construc-

tion has been or could be placed on the challenged

statute.” (Broadrick v. Oklahoma (1973) 413 U.S. 601,

613.) If the majority consider the statute overbroad,

they could have narrowly construed section 86202 so as

to preclude lobbyists from contributing to candidates

whom they lobby. Instead, the majority strike down sec-

tion 86202, thereby allowing lobbyists to contribute to

the campaigns of candidates they do in fact lobby. In

other words, the majority opinion today achieves a re-

sult it does not seek to defend.

Further, the majority make a distinction between lob-

i.

byists who contribute to officials who do and those who

do not have jurisdiction over the kind of decisions the

lobbyist is seeking to influence. This distinction over-

looks a practical reality. “[M]Jembers of the Legislature

and the constitutional officers . . . play a role in (1)

defining [an] agency’s powers; (2) adopting legislation

bearing on the work of [an] agency; (3) determining the

budget of [an] agency; (4) making or confirming ap-

pointments to [an] agency; and (5) considering future

appointments to other governmental posts for the in-

cumbent agency officials. In addition to these factors is

the prestige of these elected officials which may give

their communications with and urgings upon adminis-

trative agency officials special weight. Because of this

extensive influence, the purposes of the Political Reform

Act necessitate that the. . . prohibitions on. . . contri-

butions be applicable to all elected state officers and

candidates for such offices and to all legislative officials,

even in the case of a lobbyist who confines his activities

to one or more administrative agencies.” (Cal. Admin.

Code, tit. 2, § 18600.) This opinion by the Fair Political

Practices Commission points up the fatal weakness in

the majority’s overbreadth analysis. Unless lobbyists are

prevented from contributing to all elective state officers

or to the candidates for state office, the Political Reform

Act could never achieve its aim of curbing the abuses

that led to its passage in the first place.

Next, the majority find that “the definition of lobbyist

[in section 86202] is extremely broad, [and] include[s]

persons who appear regularly before administrative

agencies ....” (Maj. opn., ante, at p. — [typed maj.

opn. at p. 17].) This criticism lacks merit. Administrative

ht rats tk ae

Dae <2 I OE a eB Cel ed ee Se Te 2

ee aE ee eT ne

~~

agencies often deal with the most important decisions

our government makes. Therefore, it would have been

sheer folly for a law purporting to regulate lobbying to

have excluded from its scope the appearance of lobbyists

before administrative agencies which are involved in

rule-making, rate-making or quasi-legislative proceed-

ings. (Gov. Code, § 82002.) The Fair Political Practices

Commission’s own interpretation of the scope of the

Political Reform Act limits its reach as it relates to ad-

ministrative lobbying. “The purpose of the prohibitions

and disclosure requirements [of the Political Reform

Act] as applied to agency officials is to assure that no

undue economic influences will be brought to bear on

such officials when they undertake administrative ac-

tions. This purpose would not be furthered if the prohi-

bitions and disclosure requirements were interpreted as

being applicable to all agency officials, without regard to

whether the lobbyist or the filer had attempted to influ-

ence administrative actions of the official’s agency.”

Therefore, the commission has limited the lobbying dis-

closure requirements and prohibitions of the act “to offi-

cials of agencies the administrative actions of which the

lobbyist or filer has attempted to influence.” (Cal. Ad-

min. Code, tit. 2, § 18600.)

Even more perplexing is the majority’s decision to

invalidate subdivisions (d) and (e) of Government

Code sections 86107 and 86109. Section 86107, subdivi-

sion (d) requires lobbyists to file a report listing all eco-

* nomic transactions with any elective state official, legis-

lative official, agency official, state candidate, or with a

member of the immediate family of any such official or

candidate. Section 86107, subdivision (e) requires lobby-

~ ie

ists to report transactions with any business entity in

which “the lobbyist knows or has reason to know that [a

state official or state candidate] is a proprietor, partner,

director, officer or manager, or has more than a fifty

percent ownership interest,” if the transactions total

$500 or more in a calendar year. Section 86109, subdivi-

sions (d) and (e) impose similar disclosure require-

ments on employers of lobbyists or any person who pays

$250 or more in any month to influence legislative or

administrative action.

These reporting requirements are held to be unduly

onerous by the majority because transactions must be

disclosed “which may be entirely unrelated to lobbyist

activities.” (Maj. opn., ante, at p. — [typed maj. opn. at

p. 23].) The majority fail to realize that if it were not for

these provisions, lobbyists and their employers could

entirely avoid the disclosure requirements of the act by

giving money and other items of value through their

families or businesses to state officials or candidates. The

drafters of the Political Reform Act should not be criti-

cized because they foresaw and, therefore, plugged the

expected loopholes. °

* The flaws in the majority’s argument are obvious when their own

example is considered. (Ante, at p. [typed maj. opn. at

p. 23].) If a state official is a director or a majority shareholder

of the Bank of America, then the fact that a person lobbying that

official is also engaging in business transactions of $500 or more

with the Bank of America is highly relevant information to assess

the economic pressure a lobbyist may bring on the state official.

The official’s position with the Bank of America has a material or

substantial economic impact on that person. The $500 threshold

is protection against onerous or trivial reporting requirements.

urther, the Fair Political Practices Commission has adopted

a regulation which requires an agency lobbyist to disclose his

various dealings and transactions with an agency official e. if

he is engaged in lobbying before that official’s agency. (Cal.

Admin. C e, tit. 2, § 18600.)

a ee ee + ee eee + en eee. > Oi ee

- and

i eaemnemaae,

— =

In County of Nevada v. MacMillen (1974) 11 Cal. 3d

662, this court upheld the Governmental Conflicts of

Interest Act (Gov. Code, § 3600 et seq.) against similar

charges of prying into personal finances. A candidate

had to disclose the nature of the economic holdings of

his spouse and dependent children. This was held to be

reasonable because this provision prevented a candidate

from avoiding disclosure of his finances entirely by

transferring title to his scouse or children. (/d., at pp.

675-676.) In striking down the disclosure requirements

of the Political Reform Act that lobbyists disclose trans-

actions with the immediate families of state candidates

or officeholders, the maijvrity ignore the authority of

County of Nevada v. MacMillen, supra.

The Political Reform Act of 1974 brov :ht to state gov-

ernment a measure of integrity not previously present.

The First Amendment was served by the assurance that

access to elected officials did not belong only to those

with money. The majority opinion does not advance the

First Amendment today. Rather, it takes us a giant step

backward to the times when special interests represent-

ed by lobbyists were the loudest and most powerful

voices in our legislative halls.

Bird, CJ.

SE cr On i tt i re i

_

- 47~-

FILED

Jan 16 1978

JOHN J. CORCORAN, County Clerk

By , Deputy

BALL, HUNT, HART, BROWN & BAERWITZ

450 North Roxbury Drive

Beverly Hills, California 90210

(213) 278-1960

Attorneys for Plaintiff

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES

INSTITUTE OF GOVERNMENTAL

ADVOCATES, a non-profit corporation,

Plaintiff

VS.

EVELLE J. YOUNGER, as Attorney General

of the State of California and JOHN K. VAN

de KAMP, as District Attorney of the County | UD caer

of Los Angeles,

Defendants.

FAIR POLITICAL PRACTICES

COMMISSION, an agency of the State of

California,

Intervenor.

On September 14 and November 14, 1977, this cause

came on for trial in Department 33 of this Court, the

Honorable Parks Stillwell, Judge Presiding. Plaintiff

appeared by its attorneys Ball, Hunt, Hart, Brown &

— =

Baerwitz, by John R. McDonough, Laurence F. Jay, and

Allan E. Tebbetts; intervenor Fair Political Practices

Commission appeared by its attorney Lee C. Rosenthal;

defendant Evelle J. Younger appeared by his attorney

Floyd D. Shimomura; and defendant John K. Van de

Kamp, having previously entered a written appearance

by his attorney Edward G. Pozorski, did not appear. The

Court received evidence by way of a Stipulation to Facts

for Trial and a Supplemental Stipulation to Facts for

Trial; briefs were filed by the parties; oral argument was

had; and the matter was submitted. The Court having

considered the evidence and the written and oral

arguments of the parties, and having made its Findings

of Fact and Conclusions of Law, now therefore,

IT IS ORDERED, ADJUDGED AND DECREED:

1. That the Political Reform Act of 1974, Title 9 of the

Government Code, is void and of no effect.

2. That Sections 86202 and 86203 of the Government

Code, and Chapter 6 of Title 9 of the Government Code

with the exception of Government Code Section 86108

(b) and Government Code Sections 86109 and 86110

insofar as they pertain to persons defined in

Government Code Section 86108 (b), are

unconstitutional and void.

3. That defendants Evelle J. Younger and John K. Van

de Kamp, and intervenor Fair Political Practices

Commission, and their agents, employees, and all

persons acting in concert with any of them, are

permanently enjoined from initiating any criminal or

civil proceedings to enforce Section 86202 of the

al athe iki (ee tS

»

Government Code, Section 86203 of the Government

Code, any provisions of Chapter 6 of Title 9 of the

Government Code with the exception of Government

Code Section 86108(b) and Government Code Sections

86109 and 86110 insofar as they pertain to persons

defined in Government Code Section 86108 (b), and any

provisions of Title 9 of the Government Code.

4. That defendants Evelle J. Younger and John K. Van

de Kamp, and intervenor Fair Political Practices

Commission, and their agents, employees, and all

persons acting in concert with any of them, are

permanently enjoined from expending funds of the

State of California or the County of Los Angeles or from

utilizing facilities, assets, property and personnel of the

State of California or the County of Los Angeles, to act

or to prepare to act to implement, administer, or

enforce Section 86202 of the Government Code, Section

86203 of the Government Code, any provisions of

Chapter 6 of Title 9 of the Government Code with the

exception of Government Code Section 86108(b) and

Government Code Sections 86109 and 86110 insofar as

they pertain to persons defined in Government Code

Section 86108(b), and any provisions of Title 9 of the

Government Code.

5. That intervenor Fair Political Practices

Commission, its agents, employees, and all persons

acting in concert with them, are permanently enjoined

from commencing proceedings as civil prosecutor

against any lobbyist based on the single act of advising

or making a recommendation to the employer of the

_ 50-

lobbyist with regard to the making of a political

contribution, where the advice or recommendation

results in a contribution from the employer.

6. That intervenor Fair Political Practices

Commission take nothing by its complaint in

intervention.

7. That the Third and Fifth Causes of Action of

plaintiffs complaint are dismissed.

8. That plaintiff, Institute of Governmental

Advocates, have and recover its costs of this action from

and against defendants Evelle J. Younger and John K.

Van de Kamp and intervenor Fair Political Practices

Commission, in the sum of $

9. That execution of this Judgment, with the

exception of Paragraph 5 hereof, is stayed for a period

of sixty (60) days from the date of entry hereof.

DATED: January 16, 1978.

PARKS STILLWELL

JUDGE OF SUPERIOR COURT

seed.

=

FILED

Jan 16 1978

JOHN J. CORCORAN, County Clerk

By Deputy

BALL, HUNT, HART, BROWN & BAERWITZ

450 North Roxbury Drive

Beverly Hills, California 90210

(213) 278-1960

Attorneys for Plaintiff

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES

INSTITUTE OF GOVERNMENTAL

ADVOCATES, a non-profit corporation,

Plaintiff,

| VS.

EVELLE J. YOUNGER, as Attorney General

of the State of Claifornia, and JOHN K.

County of Los Angeles, cot eee

Defendants.

FAIR POLITICAL PRACTICES

COMMISSION, an agency of the State of

California,

Intervenor.

J

On September 14, and November 14, 1977, this cause

came on for trial in Department 33 of this Court, the

Honorable Parks Stillwell, Judge Presiding. Plaintiff

appeared by its attorneys, Ball, Hunt, Hart, Brown &

NO. C 110 052

FINDINGS OF

VAN de KAMP, as District Attorney of the $ racr AND

CONCLUSIONS

—

Baerwitz, by John R. McDonough, Laurence F-. Jay, and

Allan E. Tebbetts; intervenor Fair Political Practices

Commission appeared by its attorney Lee C. Rosenthal;

defendant Evelle J. Younger appeared by his attorney

Floyd D. Shimomura; and defendant John K. Van de

Kamp, having previously entered a written appearance

by his attorney Edward G. Pozorski, did not appear. The

Court received evidence by way of a Stipulation to Facts

for Trial and Supplemental Stipulation to Facts for Trial;

briefs were filed by the parties; oral argument was had;

and the matter was submitted. Having considered the

evidence and the written and oral arguments of the

parties, and having announced its intended decision, the

Court now makes the following Findings of Fact and

Conclusions of Law.

FINDINGS OF FACT

1. Plaintiff, Institute of Governmental Advocates

(hereinafter, “IGA”’), is a bona fide California nonprofit

corporation formed to promote the interests of govern-

mental advocates and lobbyists. Within one year prior to

the commencement of this action, plaintiff paid a tax

within and to the State of California.

2. The members of IGA are or have been engaged in

governmental advocacy. Forty-seven of IGA’s fifty

members are lobbyists registered with the Secretary of

State pursuant to Chapter 6 of the Political Reform Act

of 1974, Government Code Title 9 (hereinafter, “the

Act”). The members of IGA are or may be subject to the

requirements and restrictions upon lobbyists contained

— 53-

in Chapter 6 of the Act.

3. Plaintiff's lobbyist members authorized plaintiff to

commence and maintain this action on their behalf.

4. Defendant Evelle J. Younger is the Attorney Gen-

eral of the State of California, and is charged by Govern-

ment Code §91001(a) with prosecuting certain

violations of the Act. Defendant Younger has prepared

to act, has acted, and, unless restrained by order of this

Court, will continue to act and prepare to act to imple-

ment, administer, and enforce the Act, which action has

involved, now involves and will in the future involve

substantial expenditures of the funds of the State of Cali-

fornia and the significant utilization of California State

facilities, assets, property and personnel.

5. Defendant John K. Van de Kamp is the District

Atte~ney of Los Angeles County, and is charged by Gov-

ernment Code § 91001(a) with prosecuting certain vio-

lations of the Act. Defendant Van de Kamp has

prepared to act, has acted, and, unless restrained by

order of this Court, will continue to act and prepare to

act to implement, administer, and enforce the Act,

which action has involved, now involves and will in the

future involve substantial expenditures of the funds of

the County of Los Angeles and the significant utilization

of Los Angeles County facilities, assets, property and

personnel.

6. Intervenor, Fair Political Practices Commission,

(hereinafter, “the FPPC”) is a public agency of the

State of California created by the Act, and is charged by

Government Code §91001(b) with prosecuting certain

a. 8.

violations of the Act. The FPPC has prepared to act, has

acted, and, unless restrained by order of this Court, will

continue to act and prepare to act to implement, admin-

ister, and enforce the Act, which action has involved,

now involves and will in the future involve substantial

expenditures of the funds of the State of California and

the significant utilization of California State facilities,

assets, property and personnel.

7. An actual controversy has arisen and now exists

between plaintiff and its members on the one hand, and

defendants Younger and Van de Kamp and the FPPC on

the other hand, in that plaintiff contends that Govern-

ment Code $§ 86202 and 86203 and the whole of Chapter

6 of the Act with the exception of Government Code

§ 86108(b) and Government Code §§ 86109 and 86110

insofar as they pertain to persons defined in Govern-

ment Code § 86108(b), and the whole of the Act, are

unconstitutional and void, whereas said defendants and

the FPPC contend that these statutes are constitutional-

ly valid.

8. Members of IGA desire to make contributions pros-

cribed by Government Code § 86202, to act as agents or

intermediaries in the making of such contributions and

to arrange for the making of such contributions by them-

selves and by other persons, to candidates for state of-

fices, committees supporting those candidates, and

elected state officers, and would do so if not prevented

by § 86202. Such contributions would include both con-

tributions to candidates for elective state office (as de-

fined in Government Code § 82024) whom members of

ta

~—

IGA are retained to influence and also contributions to

those whom they are not retained to influence, and with

whom they have no contact, other than occasional social

contact in some instances.

9. Members of IGA desire to make gifts of more than

$10.00 per month, and to act as agents or intermediaries

in the making of gifts and arrange for the making of gifts

by themselves and by other persons, to elected state

officers and state legislative and agency officials (as de-

fined in the Act), and would do so if not prevented by

Government Code § 86203.

10. Members of IGA desire to make contributions

proscribed by Government Code § 86202 in order to

help elect public officials in whom they have confidence

and by whom they believe they will be given a fair

hearing when presenting their clients’ views and posi-

tions for consideration. Members of IGA desire to make

gifts proscribed by Government Code § 86203 in order

to be able to create opportunities to meet the recipients

thereof, to become known to them, and thus to be able

more effectively to present to them the views and posi-

tions of the clients of IGA members should the occasion

to do so arise.

11. Prior to the enactment of the Act, some lobbyists

engaged in one or more of the following practices:

A. The giving of gifts paid for by lobbyists’ employ-

ers and lobbyists themselves to legislators and other

state officials including:

(1) purchase of meals, drinks and entertainment

on a continuing basis:

=...

(2) hunting, fishing and vacation trips including

air transportation for public officials and their fami-

lies;

(3) liquor, art work, golf clubs and balls and other

similar tangible items.

B. Holding weekly gatherings at which buffet

meals, drinks and entertainment were provided and

to which legislators and certain other public officials

had open and continuing invitations. These weekly

gatherings, commonly known as Moose Milk and

Derby Club, were paid for entirely by lobbyists.

C. Allowing legislators and public officials to

charge meals, drinks and entertainment for them-

selves and their guests to the accounts of lobbyists.

D. Providing meals, drinks and entertainment to

legislators and public officials and their guests when so

requested by the legislator or public official.

E. Having discretionary control over campaign

funds of their employers including the power to deter-

mine which candidates would receive political contri-

butions and how large a contribution a candidate

would receive.

F. Acting as the conduit for delivery of their em-

ployers’ campaign cortributions to candidates.

G. Making contributions of their own money to

candidates.

Under the Act, these practices are either prohibited or

substantially restricted insofar as members of IGA are

concerned.

12. Some lobbyists engaged in the practices enumer-

=» Si =

ated in paragraph 11 above for the purpose of gaining

undue influence over legislators and state officials.

13. On November 18, 1975, this Court, on motion of

plaintiff, issued its preliminary injunction enjoining the

FPPC, its agents, officers, employees, and representa-

tives, and all persons acting in concert or participating

with them, from commencing proceedings as civil pros-

ecutor against any lobbyist based on the single act of

advising or making a recommendation to the employer

of the lobbyist with regard to the making of a political

contribution, where the advice or recommendation re-

sults in a contribution from the employer. On June 21,

1977, the granting of this injunction was affirmed by a

judgment of the Court of Appeal, Second Appellate Dis-

trict, which judgment has become final.

14. To the extent that any of the foregoing Findings

of Fact may be deemed to be a conclusion of law, this

Court so concludes.

CONCLUSIONS OF LAW

1. The initative measure of denominated Proposition

9 on the June 4, 1974 election ballot (hereinafter,

“Proposition 9”) embraced more than one subject and

therefore Title 9 of the Government Code, purportedly

enacted by Proposition 9, is void and of no effect by

reason of Article 2, §8(d) of the California Constitution.

2. Government Code §86202 is unconstitutional and

void because (a) it unjustifiably and overbroadly in-

fringes upon the rights of lobbyists, including plaintiff's

members, of free speech, association, petition, and polit-

~~ =

ical participation, in violation of the Fourteenth Amend-

ment to the United States Constitution and Article 1,

§§ 1, 2 and 3 of the California Constitution; and (b) it

classifies lobbyists, including plaintiffs members, in a

manner that is arbitrary, capricious, without rational ba-

sis, and not justified or necessitated by any compelling

state interest, and thus denies equal protection of the

laws in violation of the Fourteenth Amendment to the

United States Constitution and Article 1, §7 and Article

4, §16(a) of the California Constitution.

3. Government Code §86203 is unconstitutional and

void because it classifies lobbyists, including plaintiff's

members, in a manner that is arbitrary, capricious, with-

out rational basis, and not justified or necessitated by any

compelling state interest, and thus denies equal protec-

tion of the laws in violation of the Fourteenth Amend-

ment to the United States Constitution and Article 1, §7

and Article 4, §16(a) of the California Constitution.

4. Chapter 6 of Title 9 of the Government Code, with

the exception of Government Code §86108(b) and Gov-

ernment Code §§86109 and 86110 insofar as they pertain

to persons defined in Government Code §86108(b), is

unconstitutional and void because it classifies lobbyists,

including plaintiff's members, in a manner that is arbi-

trary, capricious, without rational basis, and not justified

or necessitated by any compelling state interest, and

thus denies equal protection of the laws in violation of

the Fourteenth Amendment to the United States Con-

stitution and Article 1, §7 and Article 4, §16(a) of the

California Constitution.

= o

5. Plaintiff is entitled to this Court’s judgment declar-

ing that Title 9 of the Government Code is void and of

no effect.

6. Plaintiff is entitled to this Court’s judgment declar-

ing that Government Code §§86202 and 86203, and

Chapter 6 of Title 9 of the Government Code with the

exception of Government Code §86108(b) and Govern-

ment Code $§86109 and 86110 insofar as they pertain to

persons defined in Government Code §86108(b), are

unconstitutional and void.

7. Plaintiff is entitled to this Court’s permanent in-

junction enjoining defendants Younger and Van de

Kamp, and the FPPC, and their agents, employees, and

all persons acting in concert with any of them, from

initiating any criminal or civil proceedings to enforce

Government Code §86202, Government Code §86203,

any provisions of Chapter 6 of Title 9 of the Government

Code with the exception of Government Code

§86108(b) and Government Code §§86109 and 86110 in-

sofar as they pertain to persons defined in Government

Code §86108(b), and any provisions of Title 9 of the

Government Code.

8. Plaintiff is entitled to this Court’s permanent in-

junction enjoining defendants Younger and Van de

Kamp, and the FPPC, and their agents, employees, and

all persons acting in concert with any of them, from

expending funds of the State of California or the County

of Los Angeles or utilizing facilities, assets, property and

personnel of the State of California or the County of Los

Angeles, to act or to prepare to act to implement, admin-

~~ =

ister, or enforce Government Code §86202, Government

Code §86203, any provisions of Chapter 6 of Title 9 of the

Government Code with the exception of Government

Code §86108 (b) and Government Code §§86109 and

86110 insofar as they pertain to persons defined in Gov-

ernment Code §86108(b), and any provisions of Title 9

of the Government Code.

9. Plaintiff is entitled to have this Court’s preliminary

injunction against the FPPC, heretofore issued in this

action, made permanent.

10. The FPPC is not entitled to the relief requested in

its complaint in intervention.

11. To the extent that any of the foregoing Conclu-

sions of Law may be deemed to be a finding of fact, this

Court so finds.

DATED: January 16, 1978.

PARKS STILLWELL

Judge of the Superior Court

Se St eo eres

APPENDIX Il

Ss bias

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STATUTES AND REGULATIONS

STATUTES

California Government Code

Prohibitions:

86202. Unlawful Contribution. It shall be unlawful

for a lobbyist to make a contribution, or to act as an

agent or intermediary in the making of any contribu-

tion, or to arrange for the making of any contribution by

himself or by any other person.

86204. Receipt of Unlawful Contribution or Gift. It

shall be unlawful for any person knowingly to receive

any contribution or gift which is made unlawful by Sec-

tion 86202 or 86203.

Definitions:

Lobbyist

82039. Lobbyist. “Lobbyist” means any person who

is employed or contracts for economic consideration,

other than reimbursement for reasonable travel ex-

penses, to communicate directly or through his agents

with any elective state official, agency o-ficial or legisla-

tive official for the purpose of influencing legislative or

administrative action, if a substantial or regular portion

of the activities for which he receives consideration is for

the purpose of influencing legislative or administrative

action. No person is a lobbyist by reason of activities

described in Section 86300.

82032. Influencing Legislative or Administrative Ac-

tion. “Influencing legislative or administrative action”

means promoting, supporting, influencing, modifying,

es ie

opposing or delaying any legislative or administrative

action by any means, including but not limited to the

provision or use of information, statistics, studies or anal-

yses.

82004. Agency Official. “Agency official” means any

member, officer, employee or consultant of any state

agency who as part of his official responsibilities partici-

pates in any administrative action in other than a purely

clerical, secretarial or ministerial capacity.

82002. Administrative Action. “Administrative ac-

tion” means the proposal, drafting, development, con-

sideration, amendment, enactment or defeat by any

state agency of any rule, regulation or other action in-

any rate-making proceeding or any quasi-legislative pro-

ceeding, which shall include any proceeding governed

by Chapter 4.5 of Division 3 of Title 2 of the Government

Code (beginning with Section 11371).

Contribution

86200. Contribution. “Contribution” as used in this

article means a contribution made to a state candidate, .

a committee supporting a state candidate, or an elected

state officer.

82015. Contribution. “Contribution” means a pay-

ment, a forgiveness of a loan, a payment of a loan by a

third party, or an enforceable promise to make a pay-

ment except to the extent that full and adequate consid-

eration is received unless it is clear from the surrounding

circumstances that it is not made for political purposes.

An expenditure made at the behest of a candidate, com-

. Se

mittee or elected officer is a contribution to the candi-

date, committee or elected officer unless full and ade-

quate consideration is received for making the

expenditure.

The term “contribution” includes the purchase of

tickets for events such as dinners, luncheons, rallies and

similar fund raising events; the candidate’s own money

or property used on behalf of his candidacy; the granting

of discounts or rebates not extended to the public gener-

ally or the granting of discounts or rebates by television

and radio stations and newspapers not extended on an

equal basis to all candidates for the same office; the

payment of compensation by any person for the person-

al services or expenses of any other person if such serv-

ices are rendered or expenses incurred on behalf of a

candidate or committee without payment of full and

adequate consideration.

The term “contribution” further includes any transfer

of anything of value received by a committee from an-

other committee.

The term “contribution” does not include amounts

received pursuant to an enforceable promise to the ex-

tent such amounts have been previously reported as a

contribution. However, the fact that such amounts have

been received shall be indicated in the appropriate cam-

paign statement.

Notwithstanding the foregoing definition of “contri-

bution,” the term does not include volunteer personal

services or payments made by any individual for his own

travel expenses if such payments are made voluntarily

- 4-—

without any understanding or agreement that they shall

be, directly or indirectly, repaid to him.

State Candidates and Officers

82007. Candidate. “Candidate” means an individual

who is listed on the ballot or who has qualified to have

write-in votes on his behalf counted by election officials,

for nomination for or election to any elective office, or

who receives a contribution or makes an expenditure or

gives his consent for any other person to receive a con-

tribution or make an expenditure with a view to bring-

ing about his nomination or election to any elective

office, whether or not the specific elective office for

which he will seek nomination or election is known at

the time the contribution is received or the expenditure

is made and whether or not he has announced his can-

didacy or filed a declaration of candidacy at such time.

“Candidate” also includes any officeholder who is the

subject of a recall election. “Candidate” does not in-

clude any person within the meaning of Section 301 (b)

of the Federal Election Campaign Act of 1971.

82050. State Candidate. “State candidate” means a

candidate who seeks nomination or election to any elec-

tive state office. ,

82021. Elected State Officer. “Elected state officer”’

means any person who holds an elective state office or

has been elected to an elective state office but has not

yet taken office. A person who is appointed to fill a

vacant elective state office is an elected state officer.

ane Pate ee TP

a

82024. Elective State Office. “Elective state office”

means the office of Governor, Lieutenant Governor, At-

torney General, Controller, Secretary of State, Treas-

urer, Superintendent of Public Instruction, member of

the Legislature and member of the State Board of

Equalization.

Committee

82013. Committee. “Committee” means any person

or combination of persons who directly or indirectly

receives contributions or makes expenditures or contri-

butions for the purpose of influencing or attempting to

influence the action of the voters for or against the

nomination or election of one or more candidates, or the

passage or defeat of any measure, including any commit-

tee or subcommittee of a political party, whether na-

tional, state or local, if:

(a) Contributions received total five hundred dollars

($500) or more in a calendar year;

(b) Independent expenditures total five hundred

dollars ($500) or more in a calendar year; or

(c) Contributions made to or at the behest of candi-

dates and committees total five thousand dollars

($5,000) or more in a calendar year.

Severability:

81015. Severability. If any provision of this title, or

the application of any such provision to any person or

circumstances, shall be held invalid, the remainder of

this title to the extent it can be given effect, or the

on

application of such provision to persons or circum-

stances other than those as to which it is held invalid,

shall not be affected thereby, and to this end the provi-

sions of this title are severable.

REGULATION

2 California Administrative Code Section 18239

18239. “Lobbyist”: Definition of Terms Used in Gov.

Code Section 82039 (Gov. Code Section 82039)

As used in Section 82039:

(a) “Reasonable travei expense” means transporta-

tion expense plus a reasonable sum for food and lodging.

(b) “Communicate directly” (and “direct communi-

cation” in this regulation) means to appear as a witness,

to talk (either on the telephone or in person) with any

elective state official, legislative official, or agency offi-

cial, to correspond with such officials or to answer ques-

tions or inquiries from such officials, regardless of

whether the communication is in person or through an

agent.

(c) “Agent” includes only those persons who act un-

der the direct supervision or direct orders of another

person to accomplish the specific goals of that person.

(d) “Influencing legislative or administrative action”

means communicating directly or taking any other ac-

tion for the principal purpose of promoting, supporting,

influencing, modifying, opposing or delaying any legisla-

tive or administrative action.

(e) “Substantial or regular” means meeting one of

the following tests:

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(1) Compensation test. Receiving or becoming

entitled to receive $1,000 or more in any 30-day period

for the purpose of communicating directly with legis-

lative, administrative or elective state officials, exclud-

ing reimbursements for reasonable travel expenses

and wages which are received as a full-time employee

engaged primarily to perform services other than in-

fluencing or attempting to influence legislative or ad-

ministrative action.

(2) Time tests. In any period consisting of two

consecutive calendar months:

(A) For persons who are not employees or offi-

cials of local government agencies:

1. Spending a total of 40 hours, including 10

hours in direct communication, influencing or at-

tempting to influence legislative action; or

2. Spending 40 hours engaging in administrative

testimony and at least one hour of other direct

communication with officials of the agency or

agencies to whom the administrative testimony is

directed; or

3. Spending 200 hours engaging in administra-

tive testimony.

(B) For persons who are employees or officials of

local government agencies:

1. Spending a total of 40 hours, including 10

hours in direct communication, influencing or at-

tempting to influence legislative or administrative

action; or

2. Spending a total of 100 hours, including 10

oc Te

hours in direct communication, influencing or at-

tempting to influence legislative or administrative

action; or

3. Spending 40 hours engaging in administrative

testimony and at least one hour of other direct

communication with officials of the agency to

whom the administrative testimony is directed; or

4. Spending 200 hours engaging in administra-

tive testimony.

(3) Definitions. For purposes of the time and

compensation tests established by this subsection:

(A) “Influencing or attempting to influence legis-

lative or administrative action” and “communicat-

ing directly”:

1. Does not include administrative testimony

unless the person providing the testimony has,

during the preceding six calendar months, made or

arranged for the making of a gift of $10 or more in

value to any legislative official or official of the

agency to whom the testimony is submitted;

2. Does not include travel time;

3. Does not include time spent on research, i.e.,

the gathering of information, statistics, studies or

analyses, the preparation of legal pleadings, briefs,

memoranda or the preparation of bill analyses.

(B) “Administrative testimony” means influenc-

ing or attempting to influence administrative action

by acting as counsel in, appearing as a witness in, or

preparing written submissions, including answers to

inquiries, which become part of the record of any

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regulatory or administrative agency’s public pro-

ceeding:

1. Which is conducted as an open public hearing

for which public notice is given; and

2. Of which a record is created in a manner

which makes possible the creation of a transcript;

and

3. With respect to which full public access is pro-

vided to such record or transcript and to all written

material which is submitted to become part of the

record.

(C) “Official of the agency” means only the ap-

pointed, elective or statutory members of the

agency, and those members of the staff of the agency

who make recommendations to such persons or who

have decision making authority on staff recommen-

dations to such persons.

COMMENTS TO REGULATION 18239:

Comment Regarding Subsection (d): “Influencing Legislative

or Administrative Action”

The test to determine whether or not a person’s activ-

ity constitutes “influencing legislative or administrative

action” is one of fact: what is the principal purpose of the

activity? If the purpose of the activity is to promote,

support, influence, modify, oppose or delay any legisla-

tive or administrative action, then the activity is within

the definition.

A lobbyist normally is not retained merely to commu-

nicate with state officials but is also expected to perform

» Bu

a number of other activities which assist both the lobby-

ist and the lobbyist’s employer in promoting or defeat-

ing legislative or administrative action. Such activities

include, among other things, administering the lob-

byist’s office, monitoring bills and regulations which one

is attempting to influence, preparing testimony and pre-

sentations, attending hearings and floor debates on bills

and regulations which one is attempting to influence,

arranging for witnesses, conferring with the employer,

communicating by phone or mail with the lobbyist’s

employer or members of his association, waiting to meet

with staff or officials, etc. The preceding list is not all

inclusive but reflects normal activities of most lobbyists,

and all such activities are integral parts of attempts to

influence legislative or administrative action.

Comment Regarding Subsection (e): “Substantial or Regular”

The proper interpretation of the phrase “substantial

or regular” is essential in order to assure that actual

lobbyists are included but those whose lobbying activi-

ties are merely casual and incidental are excluded.

(Compare United States v. Rumely, 345 U.S. 41 (1953),

with United States v. Harriss, 347 U.S. 612 (1954).) The

present regulation, by applying simple mechanical tests,

will make it possible for persons easily to determine

whether they are required to register as lobbyists and

are thus subject to the duties and prohibitions applicable

to lobbyists under the Act.

Many local public employees and officials must, as

part of their responsibilities, participate in the im-

n ‘ sacral

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plementation of state programs. Their attempts to influ-

ence administrative action in such contexts, although

they may contain an element of advocacy, are more

typically analogous to staff work in which the local offi-

cials attempt to formulate regulations for the better im-

plementation of a program. The regulation recognizes

that such attempts to influence administrative action

are intergovernmental and do not necessarily reflect

advocacy in the sense of representing a special interest

point of view and therefore establishes a higher “sub-

stantial or regular” threshold on public employees’ at-

tempts to influence administrative action. With respect

to attempts to influence Jegis/ative action, however,

public employees and officials are held to the same

threshold requirement as any other person.

One of the alternative tests provided by this regula-

tion is compensation rather than “time.” The compensa-

tion threshold is $1,000 in any 30-day period. But the

compensation must be for the purpose of communicat-

ing directly and must be compensation other than wages

received as a full time employee with duties primarily

other than lobbying. Compensation is narrowly defined

so as to prevent a highly paid person from becoming a

“lobbyist” by the compensation test because of an occa-

sional appearance before or meeting with legislative or

administrative officials.