Posted December 8, 2006 by Paul S. Ryan

CA Court Strikes Down Limits on Candidate-Controlled Ballot Measure Committees

A California appellate court today affirmed the trial court preliminary injunction in Citizens to Save California v. FPPC—striking down a state regulation limiting contributions to candidate-controlled ballot measure committees.  However, whereas the trial court had invalidated the regulation on First Amendment grounds, the appellate court today ruled on grounds of statutory interpretation, finding that the regulation was inconsistent with the state Political Reform Act (PRA) and beyond the regulatory authority of the California Fair Political Practices Commission (FPPC).

The Campaign Legal Center filed amicus briefs in this case with both the trial and appellate courts, focusing on the First Amendment issues and arguing that contributions may constitutionally be limited to candidate-controlled ballot measure committees.  And our June 6 blog post explains why such limits are important.  The appellate court refrained from addressing the constitutional issues, reasoning: “Our conclusion that the FPPC overstepped its authority renders a consideration of plaintiffs’ constitutional claims unnecessary.”

Instead, the appellate court noted that the state PRA, as well as the state Administrative Procedures Act, prohibit the FPPC from enacting regulations that are inconsistent with the PRA.  Among the statutory provisions cited by the court as being inconsistent with the regulation is one stating “[n]othing in this chapter shall limit a person’s contributions to a committee or political party committee provided the contributions are used for purposes other than making contributions to candidates for elective state office.”  Cal. Gov’t Code § 85303(c).  Interestingly, the court found this provision to preclude the regulatory limitation of contributions to candidate-controlled ballot measure committees—but failed to explain why it likewise did not preclude the limitation of contributions to a candidate’s election campaign committee.  After all, contributions to a candidate’s election campaign are not used for the purpose of making contributions to other candidates; they’re used for the purpose of making expenditures that promote the recipient candidate.

Nevertheless, for those of us who believe contributions to candidate-controlled ballot measure committees can and should be limited, all hope is not lost.  The appellate court did not rule that such a limit would be unconstitutional, as the plaintiffs hoped it would.  Instead, the court ruled that the FPPC lacks the authority to enact such a limit by regulation—such a limit would need to be enacted by the state legislature or voter initiative.  Will the state legislature be willing to shut down its own soft money loophole?  Can voters mount a successful initiative campaign in the face of stiff opposition from Governor Schwarzenegger (a plaintiff in this lawsuit), at least some legislators, and their well-heeled supporters?  Only time will tell.