Loading...
SR-104-000-06 (6) f:\atty\muni\strpts\mjm\electionrecommendations.doc City Council Meeting 12-16-03 Santa Monica, California TO: Mayor and City Council FROM: City Staff SUBJECT: Response To Recommendations On Elections Submitted by the Living Wage Commission Introduction After Santa Monica’s Living Wage ordinance was repealed by referendum, proponents of the measure established a commission to review the referendum election and make recommendations intended to protect the democratic process. The City Council received the commission’s report and directed staff to provide information and suggestions relating to the possibilities for implementation of the commission’s recommendations. This report responds to that directive. Background The commission formulated a number of recommendations, which fall into three general categories identified by the commission as public disclosure, campaign finance reporting, and compliance. As to disclosure, the commission made five recommendations for City action. The Commission recommended: (1) mandating disclosure on advertisements about ballot measures of the five largest contributors to the committee funding the advertisement; (2) including a similar disclosure on ballot pamphlets as to the five largest contributors 1 to the committee “qualifying the measure;” (3) making campaign finance information about slate mailer organizations available on the City Clerk’s website for City ballot measures and notifying voters on City ballot pamphlets of the availability of the information on the website; and (4) requiring the City Clerk to post on the website within 24 hours any campaign statements filed pursuant to state or local law, including semi- annual, pre-election and late reports and late payments to slate mailer organizations. As to campaign finance reporting, the commission recommended: (1) amending the Municipal Code definition of “committee” to conform to state law; (2) requiring slate mailer organizations to file statements of organization with the City Clerk two weeks prior to the election date and/or to file both a statement of organization and campaign statements with the City Clerk in conformity with state law deadlines; and (3) requiring committees making expenditures of $1,000 or more to support or oppose candidates or measures to report such expenditures to the City Clerk. The commission also encouraged the State and City to include an explanation of slate mailers and their potential abuse in ballot pamphlets prior to each election. As to compliance, the commission recommended creating a Santa Monica Ethics Commission to review complaints of noncompliance with election law, provide training to candidates and treasurers, and monitor election issues. Discussion Some of the commission’s suggestions have already been implemented. Others may be infeasible because of election timelines or impractical because of the attendant expense. A number of the suggestions implicate legal issues. 2 Legal constraints established by the federal and state constitutions and various state laws, including provisions of the California Elections Code and the Political Reform Act, apply to various aspects of the electoral process, including campaign financing and public disclosure. Generally speaking, California cities may enact contribution and disclosure laws in addition to those required by state law. For instance, the Political Reform Act explicitly establishes that “[n]othing in this title prevents the Legislature or any other state or local agency from imposing additional requirements on any person if the requirements do not prevent the person from complying with this [act].” Govt. Code Section 81013. Nonetheless, constitutional restrictions, which protect rights of speech, privacy, association and petition, limit cities’ ability to legislate in the area of campaign reform. Also, some State statutory requirements, including those on ballot format, probably preclude the imposition of local requirements and would therefore necessitate a statewide approach to reform. Legal constraints, practical considerations and other information applicable to each of the commission’s suggestions are supplied for the proposals in all three categories. Disclosure Proposals As to the commission’s recommendations on public disclosure, two have already been implemented. The commission proposed that information about the finances of slate mailer organizations be posted on the City Clerk’s website. That information is, in fact, already posted. Likewise, the proposal that finance information be promptly posted has already been implemented. Campaign statements filed with the City Clerk are posted on the Clerk’s website within 24 hours or as soon as possible. 3 The suggestion of requiring disclosure on the ballot pamphlet of the major contributors to the committee that “qualified the measure for the ballot” is unclear. Committees supporting measures are often formed after the measure has qualified, not before. Also, such committees may or may not be formed by the proponents of the measure. Moreover, if the intent of the commission’s suggestion is to include identification of the five largest contributors to the committee in support of the measure, the proposal may be infeasible. Because of the printing and mailing deadlines for the ballot pamphlet, any information printed regarding the contributors would become “stale” by the time voters received the information pamphlet. The deadline for printing the pamphlet is approximately 60- days prior to the election (early September) and nothing can be added or changed after that date. Obviously, substantial campaign activity would likely be conducted after the deadline and during the 60 days before the election. Also, adopting the proposal would create an incentive for forming committees after the printing deadline. Proposals to mandate the inclusion of major contributors’ names on advertisements for ballot measures and on ballot pamphlets may be legally problematic. Provisions of State law specify exactly what information is to be included on the ballot pamphlet. Requiring additional information could be preempted. See Government Code Section 88001 and Elections Code Section 9080. Additionally, constitutional safeguards protect anonymous political speech, including advertisements. However, the extent of that protection remains somewhat unclear. 4 The commission also encouraged the state and the City Clerk to include an explanation of slate mailers and their potential abuse in voter information pamphlets prior to each election. As to explanatory material, information about slate mailers is currently available in a 34 page pamphlet published by the State of California. That pamphlet is available to anyone upon request, at no cost, from the City Clerk’s Office. Other pamphlets on the various types of committees are also available. Moreover, staff has two concerns about adding information and warnings to the ballot pamphlet. First, the cost of the pamphlet will increase significantly as pages are added. Moreover, as to warnings, there may exist as much potential abuse by any other type of committee. Thus, it is unclear why there should be a particular warning about slate mailers that are, like other election campaign materials, protected speech. Campaign Finance Reporting Proposals As to the commission’s recommendations on campaign finance reporting, the City Council certainly has authority to implement the commission’s suggestion to change the Municipal Code definition of “committee” to conform to State law. This proposal would broaden the City’s definition. State law defines “committee” as “any person or combination of persons who, directly or indirectly, receive contributions or make expenditures or contributions for the purpose of influencing or attempting to influence the action of voters for or against the nomination or election of one or more candidates, or the passage, or defeat of any measure, and who is required to file campaign reports or statements under [state law].” The Municipal Code currently defines “committee” as “[a]ny person or combination of persons who directly or indirectly receives contributions or makes expenditures or contributions for the purpose of influencing or attempting to 5 influence the action of the voters for or against the nomination or election of one or more candidates.” Thus, the State definition is broader because it includes persons and groups promoting ballot measures, not just candidates. As to the proposal for requiring slate mailer organizations supporting or opposing local ballot measures to file disclosure statements with the City Clerk, state law already imposes that requirement. Elections Code Section 84215. As to the proposal for requiring reports from committees making expenditures of $1,000 or more to support or oppose local candidates or measures, the Council could probably add that requirement to local law. At present, State law only requires reporting at that level of expenditure for “independent” expenditures of $1,000 annually. Govt. Code Section 82013. Thus, the proposal could make local reporting requirements more stringent than State requirements. If the Council is interested in that proposal, the practical realities of enforcement should be considered. The suggestion of requiring slate mailer organizations to file statements of organization with the City Clerk at least two weeks prior to the election date may be legally problematic. State law currently requires filing within 10 days of qualifying as a committee or within 24 hours under certain circumstances. A local requirement requiring filing two weeks before an election could be perceived to hinder the exercise of constitutional rights to participate in the electoral process. Whether such a local law would be upheld might depend upon its declared purpose and the record attendant upon the law’s enactment. 6 Ethics Commission Proposal The proposed creation of an ethics commission is a matter of policy for the Council to consider. One of the recommended functions is training candidates and campaign treasurers. The City Clerk and the Fair Political Practices Commission already provide a training workshop early in the election season. As to enforcement, the Fair Political Practices Commission (FPPC) enforces the Fair Political Practices Act, and the City Clerk responds to complaints. Additionally, violations of local law may be addressed through criminal prosecution depending upon the circumstances and the nature of the evidence. Financial/Budget Impact Any new requirement for additional information disbursal by the City, whether through printed material or posting, will increase City election costs. Likewise, establishing any new oversight mechanism, including a new commission, would increase City expenditures. Recommendation It is respectfully recommended that the Council consider the information supplied in this report and evaluate whether to direct staff to take any further action relative to the commission’s proposals. PREPARED BY: Marsha Jones Moutrie, City Attorney Maria Stewart, City Clerk 7