Fair Political Practices Commission v. Superior Court

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 “embracfes] more than one subject” in violation of the provisions of article II, section 8, subdivision (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 [196 P.2d 787], 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 constitutional 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 consisting 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 *55noted the dangers inherent in such a manner of presentation,1 the Constitution at that time contained no provision precluding it, and we were therefore unable to ground our decision directly on this point. Because, however, of the comprehensive scope and effect of the proposal viewed as a whole, we concluded that it amounted to a revision of the Constitution, which by express provision could be accomplished only through the convening of a constitutional convention prior to submission to the people for ratification.

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 election ballot what subsequently became, following approval by the voters by a margin of more than two to one, former article IV, section 1c 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 dissenting opinion in Schmitz v. Younger (1978) 21 Cal.3d 90, at pages 96-101 [145 Cal.Rptr. 517, 577 P.2d 652], 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, which has recently been applied by this court in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 230 [149 Cal.Rptr. 239, 583 P.2d 1281], 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 “reasonably germane” test which is applicable in the context of legislative statutes.2 As I proceed to explain, however, I am persuaded that the measure now before us fails either test.

*56Turning 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 measure which we confronted in the McFadden case. Although there is no specific constitutional limit on the size of an initiative measure, 3 it might be expected that one requiring this amount of legal technical verbiage would undertake to address itself to more than one “subject.” 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 asserted to comprehend. Thus petitioner Fair Political Practices Commission claims that the initiative “concern[s] . . . the reform and integrity of the political process.” 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 should appear, for all of the aforesaid formulations speak not to the matter of the measure’s *57subject 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 subject; rather the measure speaks to a multitude of subjects which, by means of a broad statement of policy objective, the parties seek to place under a single umbrella.4 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 comprehended 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 lobbyists. The adoption of codes governing conflicts of interest in all state agencies—the provisions of such codes to affect any employee occupying a position which “involve[s] the making or participation in the making of decisions which may foresee-ably 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 legislative 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 requirement of our Constitution precludes the presentation to the electorate, on a single ballot, of a number of related subjects in furtherance of some underlying policy objective. What I do suggest is that when this is done, our Constitution requires that each subject be separately set out by means of an independent proposition, so that voters favoring one aspect of the program but opposed to another may have the opportunity to accurately reflect these views in their votes. Any other result, I submit, has the effect *58of 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.

BIRD, C. J., Dissenting.

I cannot agree with the pinched view of the First Amendment which the majority adopt in declaring unconstitutional Government Code. section 86202 and subdivisions (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 [46 L.Ed.2d 659, 96 S.Ct. 612], 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 financial contributions.” (Id., at p. 27 [46 L.Ed.2d at p. 692].) Antithetical to the very idea of representative democracy, the Supreme Court noted, is “the actuality and appearance of corruption resulting from large individual financial contributions.” The court concluded that this concern was “a constitutionally sufficient justification” for placing a limit of $1,000 on campaign contributions. (Id., at p. 26.)

The California Political Reform Act aims at freeing government and its officials from the actuality or appearance of corruption. Instead of imposing contribution limits on eveiyone as in the Buckley case, the California law zeros in on the age-old problem of lobbyist money. The abuse inherent in having persons, who are 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 *59state candidates other than those whom the lobbyist is trying to influence; and (3) includes lobbying before state administrative agencies as well as elected officials in state government. The majority choose to ignore the fact that there is a heightened threat to the image and integrity of state government 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 total ban on large or small campaign contributions from corporations, 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 [24 A.L.R.Fed. 144].) Even the United States Supreme Court “has repeatedly recognized that one of the principal purposes of [the] prohibition is ‘to avoid the deleterious influences on . . . elections resulting from the use of money by those who exercise control over large aggregations of capital.’ United States v. Automobile Workers, 352 U.S. 567, 585 (1957). See Pipefitters v. United States, 407 U.S. 385, 415-416 (1972); United States v. CIO, 335 U.S., at 113.” (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 812 [55 L.Ed.2d 707, 740, 98 S.Ct. 1407] (dis. opn. of White, J.).)

It has never been held to be too drastic to ban corporate and union campaign contributions. Rather, the courts have emphasized that the statutes allow corporations 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 [139 Cal.Rptr. 233].) 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 appearance of public officials as the captive of special interest groups by removing from lobbyists the ability to buy the ear of state officials with money. The *60people have every right to prevent the venal spectacle of lobbyists 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.1

The narrow restrictions of the Political Reform Act pale beside the restrictions of the Hatch Act on federal employees. Those who come within the coniines 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 constitutional on two occasions. (CSC v. Letter Carriers (1973) 413 U.S. 548 [37 L.Ed.2d 796, 93 S.Ct. 2880]; United Public Workers v. Mitchell (1947) 330 U.S. 75 [91 L.Ed. 754, 67 S.Ct. 556].) The prohibition on partisan political activity 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 Carriers, supra, 413 U.S. at pp. 564-567 [37 L.Ed.2d at pp. 808-810].)

In Letter Carriers, the United States Supreme Court acknowledged that the federal government’s interest in preserving its own integrity was sufficient to justify restrictions on the First Amendment rights of federal employees. 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 statute which restricted the amount of money anyone could contribute in a federal election. Consequently, the Supreme Court focused on the corruption inherent in the dependence of candidates on large contributions. Buckley does not indicate that dependence on large contributions 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.

*61Lobbyists 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 government officials by establishing personal contact. Obviously, 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. 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. Special interest groups employ lobbyists because such groups believe the greater 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 all the people. 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; purchased liquor, art work and golf clubs; 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 contributions. “[S]ome lobbyists engaged in the practices enumerated [above] for the purpose of gaining undue influence 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 groups seeking favored treatment while masquerading as proponents of the public weal.” (United States v. Harriss (1954) 347 U.S. 612, 625 [98 LEd. 989, 74 S.Ct. 808].) In 1974, the voters of this state decided to insulate state officials from lobbyists and their undue influence by removing from them the ability to “buy” access and good will by dispensing gifts and contributions.

*62The First Amendment has never precluded our citizens from taking action to restore integrity to state government 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. 45.) How can this fact justify invalidating section 86202? “Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” (Broadrick v. Oklahoma (1973) 413 U.S. 601, 613 [37 L.Ed.2d 830, 841, 93 S.Ct. 2908].) 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 section 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 result it does not seek to defend.

Further, the majority make a distinction between lobbyists 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 overlooks a practical reality. “[Mjembers 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 appointments to [an] agency; and (5) considering future appointments to other governmental posts for the incumbent agency officials. In addition to these factors is the prestige of these elected officials which may give their communications with and urgings upon administrative agency officials special weight. Because of this extensive influence, the purposes of the Political Reform Act necessitate that the . . . prohibitions on . . . contributions 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.

*63Next, 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. 45.) This criticism lacks merit. Administrative 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 proceedings. (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 administrative 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 actions. This purpose would not be furthered if the prohibitions and disclosure requirements were interpreted as being applicable to all agency officials, without regard to whether the lobbyist or the filer had attempted to influence administrative actions of the official’s agency.” Therefore, the commission has limited the lobbying disclosure requirements and prohibitions of the act “to officials of agencies the administrative actions of which the lobbyist or filer has attempted to influence.” (Cal. Admin. 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, subdivision (d) requires lobbyists to file a report listing all economic transactions with any elective state official, legislative official, agency official, state candidate, or with a member of the immediate family of any such official or candidate. Section 86107, subdivision (e) requires lobbyists 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, subdivisions (d) and (e) impose similar disclosure requirements 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. 48.) The majority fail to realize that if it were not for these provisions, lobbyists and their *64employers 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 criticized because they foresaw and, therefore, plugged the expected loopholes.2

In County of Nevada v. MacMillen (1974) 11 Cal.3d 662 [114 Cal.Rptr. 345, 522 P.2d 1345], this court upheld the Governmental Conflict of Interests and Disclosure 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 spouse or children. (Id., at pp. 675-676.) In striking down the disclosure requirements of the Political Reform Act that lobbyists disclose transactions with the immediate families of state candidates or officeholders, the majority ignore the authority of County of Nevada v. MacMillen, supra.

The Political Reform Act of 1974 brought to state government 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 represented by lobbyists were the loudest and most powerful voices in our legislative halls.

Petitioner’s application for a rehearing was denied October 11, 1979. Bird, C. J., and Newman, J., were of the opinion that the application should be granted.

“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 any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder. Minorities favoring each proposition severally might, thus aggregated, adopt all.”' (32 Cal.2d at p. 346.)

It is notable in this respect that the legislative single subject rule, unlike that applicable in the case of initiatives, contemplates only a partial nullification in the event of violation. *56Article 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.

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 Process: A Suggestion for Reform (1975) 48 So. Cal. L. Rev. 922, 935, fn. 65.)

To be distinguished from the instant situation, I belieye, is 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 pointed out that each was part of “an interlocking “package’ deemed necessary by the initiative’s framers to assure effective real property 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 [36 P.2d 549], a measure dealing with diverse matters relating to “taxation.” (Id., at pp. 231-232.) In my view the measure here before us, similarly dealing in diverse ways with various practices under the broad banner of “political reform,” should share the fate of the Arizona “taxation” initiative.

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 employer’s, that exception would have rendered the law a nullity from the beginning. 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.

The flaws in the majority’s argument are obvious when their own example is considered. {Ante, at p. 48.) 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.

Further, 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 only if he is engaged in lobbying before that official’s agency. (Cal. Admin. Code, tit. 2, § 18600.)