BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 834


                                                                    Page  1





          Date of Hearing:  April 29, 2015 


                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING


                           Sebastian Ridley-Thomas, Chair


          AB 834  
          (Salas) - As Amended March 26, 2015


          SUBJECT:  Political Reform Act of 1974:  advertisements.


          SUMMARY:  Prohibits public agencies from paying for  
          advertisements that feature candidates for office in the last 90  
          days before an election.  Specifically, this bill:  


          1)Prohibits a person or entity from disseminating, broadcasting,  
            or otherwise publishing a public advertisement featuring a  
            candidate for elective office within 90 days before the date  
            of the election at which the candidate will appear on the  
            ballot.


          2)Defines "public advertisement," for the purposes of this bill,  
            as an advertisement, including a broadcast, billboard, or  
            newspaper advertisement, that is paid for from the funds of a  
            state or local public agency.


          3)Defines "featuring a candidate," for the purposes of this  
            bill, as containing the voice or image of, or a statement  
            attributable to, a candidate.









                                                                     AB 834


                                                                    Page  2







          EXISTING LAW:  


          1)Creates the Fair Political Practices Commission (FPPC), and  
            makes it responsible for the impartial, effective  
            administration and implementation of the Political Reform Act  
            (PRA).

          2)Prohibits a public officer from expending, and prohibits a  
            candidate from accepting, any public moneys for the purpose of  
            seeking elective office.



          3)Makes it unlawful for an elected state or local officer,  
            appointee, employee, or consultant to use, or permit others to  
            use, public resources for a campaign activity.



          4)Provides that any officer of the state, or of any county,  
            city, town or district of the state, and every other person  
            charged with the receipt, safekeeping, transfer, or  
            disbursement of public moneys who uses such funds for personal  
            use is guilty of a felony, punishable by imprisonment in the  
            state prison for two, three, or four years, and is  
            disqualified from holding any office in the state.

          5)Prohibits a newsletter or other mass mailing from being sent  
            at public expense.  Defines "mass mailing," for these  
            purposes, as over two hundred substantially similar pieces of  
            mail, not including a form letter or other mail which is sent  
            in response to an unsolicited request, letter or other  
            inquiry.










                                                                     AB 834


                                                                    Page  3







          FISCAL EFFECT:  Unknown. State-mandated local program; contains  
          a crimes and infractions disclaimer.


          


          COMMENTS:  


          1)Purpose of the Bill:  According to the author:


               In California, a government entity can pay for  
               advertisements such as billboards, public service  
               announcements, and commercials that feature a  
               candidate for elective office.  While this activity is  
               not considered to be a contribution by the Fair  
               Political Practices Commission (FPPC), the public  
               funds that are used support candidates for public  
               office during elections.   





               A central purpose of the Political Reform Act, which  
               established the FPPC, is to provide the voters and  
               public with meaningful disclosure of state and local  
               campaign contributions and expenditures, state  
               lobbying activity, and the economic interests of state  
               and local candidates and designated public officials.












                                                                     AB 834


                                                                    Page  4







               The California State Senate Rules Committee, which  
               publishes mass mailings for all state Senators, has  
               established a 90-day mass-mailing prohibition to those  
               Senators whose names appear on any ballot.  This  
               policy is designed to prevent content that has the  
               effect of enhancing the public image of Senators  
               during an election.





               At least nine states prohibit the use of public funds  
               for public service announcements and other  
               communications that feature candidates for public  
               office, including elected officials running for  
               re-election or election to a different office.





               Assembly Bill 834 would establish a black out period,  
               aligning with the California Senate mailing  
               prohibition, which prohibits the use of advertisements  
               that feature a candidate and is paid for by state or  
               local entities, in the final 90 days of an election in  
               which the candidate will appear on the ballot.


          2)Existing Prohibitions Against the Use of Public Funds for  
            Campaign Purposes:  As detailed above, California law already  
            contains a number of provisions that prohibit public funds  
            from being used for campaign purposes. The types of payments  
            that are prohibited by those laws vary, however, as do the  









                                                                     AB 834


                                                                    Page  5





            standards that apply for determining whether a particular  
            payment violates the law.  



          Nonetheless, these prohibitions typically apply only to payments  
            that constitute "express advocacy" for or against a candidate  
            or ballot measure, or that otherwise refer to an elective  
            office or campaign or solicit contributions.  In situations  
            where public funds are used for an otherwise permissible  
            public purpose, however, state law does not prohibit such  
            payments simply because the payment may have the effect of  
            benefitting a candidate for elective office.  For example, a  
            cable television program produced by a city and hosted by the  
            mayor of that city would not necessarily violate any of the  
            existing prohibitions against the use of public funds for  
            campaign purposes if the program was not used to expressly  
            advocate the election of any candidate, even though the  
            program may benefit the mayor's reelection campaign by raising  
            the profile of the mayor.
          3)San Joaquin Valley Air Pollution Control District: As  
            background information in support of the need for this bill,  
            the author provided correspondence between the San Joaquin  
            Valley Air Pollution Control District (District) and the FPPC  
            from 2010 in which the District sought guidance on whether any  
            provision of the PRA would limit the ability of the District  
            to produce and conduct public education and outreach campaigns  
            through public service announcements (PSAs) that featured  
            members of the District's board.  In its letter to the FPPC,  
            the district indicated that some of the District's elected  
            board members could be involved in a reelection campaign at  
            the time the PSAs were broadcast or displayed.



          In its response to the district, the FPPC concluded that since  
            the PSAs would not contain express advocacy, would not refer  









                                                                     AB 834


                                                                    Page  6





            to elective office, and would not solicit contributions, the  
            payments made to create the PSAs would not be a contribution  
            to the District's board members.  Additionally, the FPPC  
            concluded that the PSAs would not be considered "behested  
            payments" under the PRA, and thus that those payments would  
            not need to be reported by the board members appearing in the  
            PSAs. The FPPC's response did not opine on whether the  
            expenditure of public funds for the PSAs would violate any  
            legal restriction on the use of public funds for campaign  
            purposes that is not contained in the PRA. 
          4)Limiting Communications Between Governmental Agencies and the  
            Public: Notwithstanding the author's concern that existing law  
            may permit the payment of public funds for advertisements that  
            can indirectly benefit public officials' campaigns, any  
            limitation on the type or timing of communications between  
            governmental agencies and the public has the potential to  
            limit the ability of agencies to serve the public.  For  
            instance, many local agencies regularly produce public affairs  
            programs that air on local cable stations to provide the  
            public with information about the agencies' activities and  
            services, and the policies that they are considering.  If  
            these programs are considered broadcast advertisements under  
            the provisions of this bill, they could be restricted  
            considerably, which could limit the public's access to  
            information about the activities of governmental agencies.



          Additionally, notwithstanding the author's concern that PSAs  
            could be used to benefit the image of public officials who are  
            running for reelection, it may also be the case that the  
            involvement of public officials in PSAs can make certain  
            messages more effective.  A PSA dealing with drunk driving,  
            for example, may be more effective if it features the county  
            sheriff.  Similarly, during a state of emergency, public  
            officials can be effective as trusted messengers to help  
            communicate essential information to the public.  









                                                                     AB 834


                                                                    Page  7






          As detailed above, state law already contains numerous  
            protections against the use of public funds for campaign  
            purposes.  In determining whether further restrictions on the  
            use of public funds are warranted when those funds are used  
            for advertisements featuring public officials, the committee  
            may wish to balance any potential for abuse against the  
            potential that such restrictions may limit the effectiveness  
            of governmental communications with the public.
          5)Technical and Logistical Issues: As currently drafted, this  
            bill prohibits advertisements from being distributed if those  
            advertisements were produced using public funds, even if  
            public funds are not being used to pay for the broadcast or  
            dissemination of the advertisement.



          For example, a city might choose to use public funds to produce  
            a PSA in which the mayor of the city encourages water  
            conservation in light of the state's ongoing drought.  The  
            city might further decide not to use public funds to broadcast  
            that PSA, but instead to make it available to local television  
            stations that are willing to broadcast the PSA for free.   
            However, if a television station chose to air that PSA in the  
            last 90 days before an election at which that mayor was  
            appearing on the ballot as a candidate, that station would  
            have violated the provisions of this bill.

          Additionally, because the conduct prohibited by this bill is the  
            dissemination of certain advertisements, and not the use of  
            public funds to produce or disseminate those advertisements,  
            individuals and entities could face liability under this bill  
            even if they were not involved in the decision to use public  
            funds for the advertisement.  For instance, under a strict  
            reading of this bill, a newspaper could be found to violate  
            this bill if it ran an advertisement that was produced by a  
            governmental entity, even where the governmental entity paid  









                                                                     AB 834


                                                                    Page  8





            for that advertisement to appear in the newspaper.

          Because the author's intent with this bill seems to be  
            preventing governmental agencies from using public funds to  
            promote agency officials in the days leading up to an  
            election, it may be appropriate to amend this bill to better  
            reflect the author's intent and to avoid the technical and  
            logistical issues outlined above. In light of that fact, if it  
            is the committee's desire to approve this bill, the author and  
            the committee may wish to consider amendments that would  
            replace the text of this bill with the following language:

          SECTION 1.  Section 89002 is added to the Government Code, to  
            read:

          89002.  No state or local governmental agency shall make a  
            payment or otherwise use agency resources for the purpose of  
            publicly disseminating a communication by television, radio,  
            billboard, or newspaper that clearly identifies a candidate  
            for elective office within 90 days before the date of an  
            election, or on the date of the election, at which the  
            candidate will appear on the ballot.  The commission shall  
            promulgate regulations that permit exceptions to this  
            prohibition when necessary to the efficient operation of the  
            agency or responsive to an emergency or other critical issue  
            within the agency's jurisdiction.
          6)Political Reform Act of 1974: California voters passed an  
            initiative, Proposition 9, in 1974 that created the FPPC and  
            codified significant restrictions and prohibitions on  
            candidates, officeholders and lobbyists. That initiative is  
            commonly known as the PRA.  Amendments to the PRA that are not  
            submitted to the voters, such as those contained in this bill,  
            must further the purposes of the initiative and require a  
            two-thirds vote of both houses of the Legislature.











                                                                     AB 834


                                                                    Page  9





          
          REGISTERED SUPPORT / OPPOSITION:




          Support


          None on file.




          Opposition


          None on file.




          Analysis Prepared by:Ethan Jones / E. & R. / (916) 319-2094