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sr-051011-7dc7 } City Of Clt~/ ~®UiIClI ~\~ip®' Y. Santa Moniea 16, Zoe 1 City Council Meeting: ~laq-~-394i- Agenda Item: ~' -D To: Mayor and City Council From: Marsha Jones Moutrie, City Attorney Subject: Proposed Ordinance Amending Municipal Code Provisions Restricting Campaign Contributions Recommended Action Staff recommends that Council introduce for first reading the attached proposed ordinance amending the City's campaign contribution restrictions in order to conform to developments in First Amendment case law. Executive Summary In recent years, the United States Supreme Court and lower federal and state courts have issued decisions expanding the First Amendment protection of financial participation in the political process. The City's law restricting campaign contributions was adopted in 1992, before these cases were decided. Because of these decisions, legal staff proposed that Council increase the City's contribution limit and eliminate the limit as to committees that are not controlled by candidates. Accordingly, and despite concerns about the impacts of money on the democratic process, Council directed staff to prepare an ordinance conforming the Municipal Code to the recent court decisions. The attached ordinance fulfills that direction. Background As explained in the March 22. 2011 staff report on election related matters, the Supreme Court's decision in Citizens United v. Federal Elections Commission, 130 S.Ct. 876 (2010) and other federal decisions establish the rule that cities may not limit so-called independent expenditures (those made by committees not controlled by a candidate). And, a line of federal cases establishes that contribution limits cannot be set so low as to potentially hinder candidates' ability to purchase the advertising necessary to communicate their views. 1 Council considered the information provided by staff, noted that the current City contribution limit of $250 had not been increased since its adoption in 1992, and included no escalator to reflect increasing costs. Ultimately, Council directed staff to return with an ordinance raising the contribution limit to $400 and eliminating the current restriction on uncontrolled committees. Discussion The attached proposed ordinance fulfills Council's directives. It would increase the contribution limit in Municipal Code Section 11.04.050 from $250 to $400. As Council noted at its prior meeting, $400 is approximately the amount that the current limit would have been if an escalator clause had been included in the ordinance at the time of its adoption. Additionally, the proposed ordinance-would delete from Section 11.04.050 the language making the City's contribution limit applicable to uncontrolled committees - a change necessitated by the Supreme Court's decision in Citizens United. Finally, as to Section 11.04.050, the proposed ordinance would eliminate subsection (c) because it is no longer necessary, having been added before Citizen's United to try and shield the ordinance from a challenge to the limit on contributions to uncontrolled committees. The ordinance would also modify Section 11.04.070, on aggregation of payments, by eliminating language adopted in 1992 that purports to prohibit persons who serve as officers of controlled committees from also serving as officers of uncontrolled committees and to prohibit the two types of committees from undertaking any "act in concert." Staff proposes elimination of this language because, given the staunch protection that the courts now afford to political activities, the language would likely be construed as an unwarranted intrusion on the First Amendment freedom and because the prohibition against acting "in concert" is vague. 2 Alternatives As previously noted, Council could maintain the current code provisions despite the changes in case law, which would pose a significant legal risk. Additionally, Council could establish a new contribution limit different than the limit proposed in the attached ordinance. Financial Impacts & Budget Actions There are no direct financial impacts on the City attendant upon the approval of the proposed ordinance. Prepared by: Marsha Jones Moutrie, City Attorney roved: ~ ~ ~ l~l~-s~%~ Na e M sha Jon s Moutrie, City Attorney Forwarded to Council: Rod Gould City Manager Attachments: A. Proposed Ordinance 3 F:\atty\mu n i\laws\mj m\LimitationsOnContributionsOrd050311 City Council Meeting: 5/3/2011 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AMENDING SECTIONS 11.04.050 AND 11.04.070 OF THE SANTA MONICA MUNICIPAL CODE RELATING TO CONTRIBUTIONS TO CANDIDATES FOR OFFICE WHEREAS, the City of Santa Monica is known for its highly participatory local democracy; and WHEREAS, the City Council has adopted various laws and policies intended to encourage broad participation in the local political process; and WHEREAS, among these laws is a contribution limit established in 1992 in the amount of $250; and WHEREAS, the law adopted in 1992 applies this limit to individuals, committees controlled by candidates, and uncontrolled committees; and WHEREAS, this limit has not been changed since 1992; and WHEREAS, the City Council has preserved the 1992 limit in order to curtail the influence of money and special interests upon the democratic process in Santa Monica; and 1 WHEREAS, in recent years decisions of the United States Supreme Court and lower courts have invalidated campaign finance restrictions like Santa Monica's on First Amendment grounds; and WHEREAS, based on this development in the case law, the City Council has determined that Santa Monica's contribution limit must be revised, in order to maintain its constitutionality. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Santa Monica Municipal Code Section 11.04.050 is hereby amended to read as follows: 11.04.050 Limitations on contributions from persons. (a) No person shall make to any candidate for office or to the controlled committee of such acandidate-er ^~~~a;dat~, a contribution or contributions totaling more than ~~d-fiftyfour hundred dollars 400 for each election in which the candidate was on, is on, or is likely to be on the ballot or in which the candidate sought or seeks write-in votes. 2 (b) No candidate for office or the controlled committee of such a candidate ^r °^ ~ ^^^~^~~++°° which supports or opposes such candidate shall accept from any person a contribution or contributions totaling more than #wa #f+ftyfour hundred dollars 400 for each election. (~.~) Tr,T~` n°r.4:r~ oh.+ll nn+ h° 'n+°rn r°+°rl nr onnl;°r7 4h h ^^rJ'+~~r°c D.++h°r 'i in 'r+°nr7°r7 +n h° °nfl +^ '^,+',,:.+ ^I^ ^^rt ^^.,,„,I++°°^ (Prior code § 11203; added by Ord. No. 1630CCS § 1, adopted 6/9/92, amended by Ord. No. 2270CCS § 2, adopted 9/16/08) SECTION 2. Santa Monica Municipal Code Section 11.04.070 is hereby amended to read as follows: 11.04.070 Aggregation of payments. (a) All contributions made by a person or small contributor political action committee whose contributions or expenditure activity is financed, directed or controlled by any corporation, partnership, committee, labor organization, association, political party or any other person or committee, including any parent, subsidiary, branch, division, 3 department or local unit of the corporation, labor organization, partnership, committee, association; political party or any other person, or by any group of such persons, shall be considered to be made by the person, organization or entity financing, directing or controlling the contribution as well as the person, small contributor or political action committee making the contribution. (b) Two or more entities shall be regarded as the same person or small contributor political action committee when any of the following apply: (1) The entities share the majority of members of their boards of directors; (2) The entities share two or more officers; (3) The entities are owned or controlled by the same majority shareholder or shareholders; (4) The entities are in aparent-subsidiary relationship. (c) An individual and any general partnership in which the individual is a partner, or an individual and any corporation in which the individual owns a controlling interest, shall be regarded as the same person. 4 w„d;d^t.; ~..,wnd;d^±ec ,.,~.,;:e ccn+.:"..+:c..... (Prior code § 11205; added by Ord. No. 1630CCS § 1, adopted 6/9/92) SECTION 3. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 4. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinahce and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. 5 SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. APPROVED AS TO FORM: MA SHA J S MOUT E ~~~~ Ci Attorn 6