Institute of Govern. Advoc. v. Fair Polit. Prac., No. CIVS-01-859 FCD JFM.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtDamrell
Citation164 F.Supp.2d 1183
PartiesINSTITUTE OF GOVERNMENTAL ADVOCATES, et al., Plaintiffs, v. FAIR POLITICAL PRACTICES COMMISSION, et al., Defendants.
Decision Date17 September 2001
Docket NumberNo. CIVS-01-859 FCD JFM.
164 F.Supp.2d 1183
INSTITUTE OF GOVERNMENTAL ADVOCATES, et al., Plaintiffs,
v.
FAIR POLITICAL PRACTICES COMMISSION, et al., Defendants.
No. CIVS-01-859 FCD JFM.
United States District Court, E.D. California.
Filed September 17, 2001.

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Charles H. Bell, Jr., Thomas W. Hiltachk Bell, McAndrews, Hiltachk & Davidian, LLP, Sacramento, California, for the plaintiffs.

Bill Lockyer, Attorney General of the State of California, Louis R. Mauro, Supervising Deputy Attorney General, Susan R. Oie, Deputy Attorney General, Sacramento, California, for the defendants.

MEMORANDUM AND ORDER

DAMRELL, District Judge.


Plaintiffs, a California non-profit corporation representing the interests of lobbyists and three individual lobbyists, bring a facial challenge to the constitutionality of recently enacted California Government Code section 85702, claiming that it violates their First Amendment rights of freedom of speech and association, their Fourteenth Amendment right to equal protection, and Title 42 U .S.C. section 1983. Section 85702 prohibits a direct contribution by a lobbyist to an elected state officer or candidate for elected state office, if the lobbyist is registered to lobby the governmental agency for which the officeholder works or for which the candidate seeks election. The case is before the court on the parties' cross-motions for summary judgment. Plaintiffs seek a judgment from the court declaring Section 85702 unconstitutional and an injunction restraining the administration, implementation and enforcement of the statute. Defendants, on the other hand, seek to have this court declare the statute constitutional on the grounds that it is narrowly drawn to support a legitimate state interest.

The court heard oral argument on the motions on August 24, 2001. By this order, the court now renders its decision.

BACKGROUND

Section 85702 is part of the California Political Reform Act ("PRA") which was originally adopted by the voters in 1974 as Proposition 9. Cal.Gov't Code § 81000 et seq. The PRA provides for its amendment either by a two-thirds vote of the Legislature or by another initiative statute adopted by the voters. Cal.Gov't Code § 81012. On November 7, 2000 California voters again amended the PRA by adopting Proposition 34. See Pls.' Stmt. of Undisputed Facts, filed July 24, 2001 ("Pls.' UF"), No. 10. Defendant Fair Political Practices Commission ("FPPC") is the state agency charged with the administration and implementation of the PRA, including the newly adopted provisions of Proposition 34. See Pls.' UF, No. 7.

1. Proposition 34 Generally

Effective January 1, 2001, Proposition 34 imposes limits on campaign contributions by "persons" to state candidates and officeholders of varying amounts depending on the state elective office sought. Cal.Gov't Code § 85301. Specifically, a "person"1 may not contribute more than $3,000.00 per election to a candidate for a legislative office. Cal.Gov't Code § 85301(a). Different contribution limits apply to other statewide elective offices. Cal.Gov't Code 85301(b) and (c).

Proposition 34 also contains many other provisions, including contribution limits on the receipts of political action committees

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("PACs") and political party committees, voluntary expenditure limits in state elective races, and new disclosure requirements. Cal .Gov't Code §§ 85303, 85400, 85309. Additionally, Proposition 34 increased the maximum administrative fine for a violation of the PRA from $2,000.00 per violation to $5,000.00 per violation. Cal.Gov't Code § 83116. Plaintiffs do not challenge the validity of any of these provisions of Proposition 34; they only challenge the constitutionality of the ban on contributions by lobbyists.2

2. Proposition 34's Regulation of Lobbyists

Proposition 34 added Section 85702 which provides,

An elected state officer or candidate for elected state office may not accept a contribution from a lobbyist, and a lobbyist may not make a contribution to an elected state officer or candidate for elected state office, if that lobbyist is registered to lobby the governmental agency for which the candidate is seeking election or the governmental agency of the elected state officer.

Violation of this section may be prosecuted civilly or administratively by the FPPC. As stated above, the administrative penalty for violation of the statute is a fine of up to $5,000.00 per violation. Additionally, a knowing and willful violation of the PRA may be prosecuted as a misdemeanor. Cal.Gov't Code § 91000. A person convicted of a misdemeanor under the PRA is prohibited from acting as a lobbyist for a period of four years following the date of conviction. Cal.Gov't Code § 91002.

The PRA defines a lobbyist as

any individual who is employed or contracts for economic consideration, ..., to communicate directly or through his or her agents with any elective state[,] [agency or legislative] official for the purpose of influencing legislative or administrative action, if a substantial or regular portion of the activities for which he or she receives consideration is for the purpose of influencing legislative or administrative action.

Cal.Gov't Code § 82039. In addition to the statutory definition of a "lobbyist," the California Code of Regulations specifies who will be considered a professional lobbyist required to register and be subject to the reporting and other requirements of the PRA.3 Cal.Code of Regs. § 18239 ("Regulation 18239"). Those meeting the statutory and regulatory definitions of a "lobbyist" are required to file a lobbyist certification with the Secretary of State. Cal.Gov't Code §§ 86100-86105.

At the beginning of the current legislative session, the California Secretary of State had approximately 1,000 persons registered as "lobbyists." See Pls.' UF, No. 16.

3. Prior Bans on Contributions by Lobbyists

The concept of banning contributions by lobbyists is not new. Such a ban was part of the original PRA and was the subject of

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litigation brought by a plaintiff in this case, the Institute of Governmental Advocates. Fair Political Pratices Comm'n v. Sup.Ct., 25 Cal.3d 33, 45, 157 Cal.Rptr. 855, 599 P.2d 46 (1979) ("FPPC v. Sup.Ct."). Former Government Code section 86202 provided:

It shall be unlawful for a lobbyist to make a contribution, or to act as an agent or intermediary in the making of any contribution, or to arrange for the making of any contribution by himself or by any other person.

In 1979, the California Supreme Court struck down Section 86202 on the grounds that a total ban of all contributions by any lobbyist is not a "closely drawn" restriction and thus, violated plaintiffs' First Amendment rights of freedom of speech and association.

In 1996, California voters adopted Proposition 208, a complex contribution and expenditure limit scheme that also included a ban on contributions by lobbyists (former Government Code section 5704).4 Enforcement of that provision, as well as the entirety of Proposition 208 was preliminarily enjoined by this district court in 1998. California Prolife Council PAC v. Scully, 989 F.Supp. 1282 (E.D.Cal.1998), aff'd, 164 F.3d 1189 (9th Cir.1999).

While Proposition 208 was still enjoined, John Burton, President pro Tempore of the California Senate, authored Senate Bill 1223, another campaign finance reform measure which, when passed by both houses of the Legislature and signed by the Governor, was placed before the voters at the November 2000 General Election as Proposition 34. See Defs.' Mem. of P. & A. in Supp. of MSJ, filed July 27, 2001 ("Defs.' MSJ"), Ex. D. The Proposition passed by a vote of 60.1% to 39.9%. Id.

In addition to adding substantive new provisions, Proposition 34 repealed former Section 85704 and added Section 85702, the subject of this lawsuit.

STANDARD OF REVIEW

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is appropriate when the historical facts controlling the application of a rule of law are undisputed and the complaint raises only a question of law for the court to decide. Delbon Radiology v. Turlock Diagnostic Ctr., 839 F.Supp. 1388, 1391 (E.D.Cal. 1993). In particular, a facial challenge to the constitutionality of a statute is ripe for resolution by summary judgment. Bullfrog Films, Inc. v.. Wick, 847 F.2d 502, 505-06 (9th Cir.1988). Such is the case at bar.

ANALYSIS

1. Jurisdiction Over the FPPC

In their moving papers, defendants argued that they were entitled to summary judgment because under the Eleventh Amendment the court lacked jurisdiction over the FPPC. However, at oral argument defendants stipulated to a waiver of their sovereign immunity, thus, establishing this court's jurisdiction over the FPPC. See Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

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2. Plaintiffs' First Amendment Claim

a. Standard of Review

In order to challenge a statute on First Amendment grounds, plaintiffs must first demonstrate that the statute impinges on rights protected by the First Amendment. The United States Supreme Court has held that "contribution ... limitations operate in an area of the most fundamental First Amendment activities," and such limitations "impinge on protected associational freedoms." Buckley v. Valeo, 424 U.S. 1, 14 & 22, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).5 The Court thus held that burdens on contributions may only be sustained if the State demonstrates "a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms." Id. at 25, 96 S.Ct. 612; see also Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 387-88, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (affirming standard of review articulated in Buckley in assessing the...

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5 practice notes
  • Dallman v. Ritter, No. 09SA224.
    • United States
    • Colorado Supreme Court of Colorado
    • 22 Febrero 2010
    ...have held that absolute bans are not per se unconstitutional. See Inst. of Gov't Advocates v. Fair Political Practices Comm'n, 164 F.Supp.2d 1183, 1191 (E.D.Cal. 2001); N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 716 (4th Cir.1999); Casino Ass'n of La. v. Louisiana ex rel. Foster, 8......
  • Casino Ass'n of La. v. State ex rel. Foster, No. 2002-CA-0265.
    • United States
    • Supreme Court of Louisiana
    • 21 Junio 2002
    ...denied, 528 U.S. 1153, 120 S.Ct. 1156, 145 L.Ed.2d 1069 (2000); Inst. of Governmental Advocates v. Fair Political Practices Comm'n, 164 F.Supp.2d 1183 (E.D.Cal.2001). Finally, corporate contributions to candidates and candidate committees have long been 820 So.2d 504 prohibited completely a......
  • Green Party of Connecticut v. Garfield, Civil Action No. 3:06cv1030 (SRU).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 19 Diciembre 2008
    ...and not merely "limits" on contributions. For instance, in Institute of Governmental Advocates v. Fair Political Practices Commission, 164 F.Supp.2d 1183, 1191 (E.D.Cal.2001), the Court noted that the statute at issue was "not unconstitutional simply because it bans, rather than limits, con......
  • Preston v. Leake, No. 10–2294.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 7 Noviembre 2011
    ...to lobby the office for which the candidate seeks election.” Inst. of Governmental Advocates v. Fair Political Practices Comm'n, 164 F.Supp.2d 1183, 1190 (E.D.Cal.2001). But unlike California law, North Carolina law does not require lobbyists to specify the politicians whom they will be lob......
  • Request a trial to view additional results
5 cases
  • Dallman v. Ritter, No. 09SA224.
    • United States
    • Colorado Supreme Court of Colorado
    • 22 Febrero 2010
    ...have held that absolute bans are not per se unconstitutional. See Inst. of Gov't Advocates v. Fair Political Practices Comm'n, 164 F.Supp.2d 1183, 1191 (E.D.Cal. 2001); N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 716 (4th Cir.1999); Casino Ass'n of La. v. Louisiana ex rel. Foster, 8......
  • Casino Ass'n of La. v. State ex rel. Foster, No. 2002-CA-0265.
    • United States
    • Supreme Court of Louisiana
    • 21 Junio 2002
    ...denied, 528 U.S. 1153, 120 S.Ct. 1156, 145 L.Ed.2d 1069 (2000); Inst. of Governmental Advocates v. Fair Political Practices Comm'n, 164 F.Supp.2d 1183 (E.D.Cal.2001). Finally, corporate contributions to candidates and candidate committees have long been 820 So.2d 504 prohibited completely a......
  • Green Party of Connecticut v. Garfield, Civil Action No. 3:06cv1030 (SRU).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 19 Diciembre 2008
    ...and not merely "limits" on contributions. For instance, in Institute of Governmental Advocates v. Fair Political Practices Commission, 164 F.Supp.2d 1183, 1191 (E.D.Cal.2001), the Court noted that the statute at issue was "not unconstitutional simply because it bans, rather than limits, con......
  • Preston v. Leake, No. 10–2294.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 7 Noviembre 2011
    ...to lobby the office for which the candidate seeks election.” Inst. of Governmental Advocates v. Fair Political Practices Comm'n, 164 F.Supp.2d 1183, 1190 (E.D.Cal.2001). But unlike California law, North Carolina law does not require lobbyists to specify the politicians whom they will be lob......
  • Request a trial to view additional results

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