Institute of Governmental Advocates v. Younger

• Decision Date: 21 June 1977
• Parties: INSTITUTE OF GOVERNMENTAL ADVOCATES, Plaintiff and Respondent, v. Evelle J. YOUNGER et al., Defendants, Fair Political Practices Commission, Intervenor and Appellant. Civ. 48818.
• Court: California Court of Appeals Court of Appeals

Page 233

139 Cal.Rptr. 233

70 Cal.App.3d 878

INSTITUTE OF GOVERNMENTAL ADVOCATES, Plaintiff and Respondent, v. Evelle J. YOUNGER et al., Defendants, Fair Political Practices Commission, Intervenor and Appellant.

Civ. 48818.

Court of Appeal, Second District, Division 4, California.

June 21, 1977.

Daniel H. Lowenstein, Robert M. Stern, Menlo Park, Kenneth H. Finney, Berkeley, Natalie E. West, Sacramento, and Michael J. Baker, San Francisco, for intervenor and appellant.

Ball, Hunt, Hart, Brown & Baerwitz, Joseph A. Ball, John R. McDonough and Allen E. Tebbetts, Long Beach, for plaintiff and respondent.

KINGSLEY, Acting Presiding Justice.

The present appeal involves the validity of an interpretation made by appellant Fair Political Practices Commission of section 86202 of the Political Reform Act of 1974. ¹ The trial court issued a preliminary injunction prohibiting the enforcement of that interpretation. ² For the reasons set forth below, we conclude that the interpretation enjoined constituted an invalid invasion of the right of free speech guaranteed by the First Amendment to the Constitution of the United States and by section 2 of article 1 of the California Constitution. Accordingly we affirm the injunction as issued.

Section 86202 of the Political Reform Act reads as follows:

'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.'

Pursuant to its statutory power to issue interpretations of that act, ³ the commission promulgated an interpretation of the word 'arrange,' as used in section 86202. So far as is here pertinent, that interpretation reads as follows:

'BY THE COMMISSION: We have been asked the following questions by Donald C. Green, Law Offices of Green and Azevedo:

'(a) Does Government Code Section 86202 ¹ prevent a lobbyist from advising his or her employer with regard to making political campaign contributions to state officials?

'(b) Do Sections 86200, Et seq. prohibit a lobbyist from advising his or her employer with regard to the voting record of a legislator?

'CONCLUSION

'(a) By advising his or her employer with regard to making political campaign contributions to state officials, the lobbyist has arranged for the making of a contribution as prohibited by Section 86202 if all the following criteria are met:

'(1) the lobbyist communicated with the employer; ²

'(2) the advice was given wholly or partially with the intent of influencing the employer's decision to make a campaign contribution;

'(3) the employer in fact made a contribution; and

'(4) the lobbyist's advice was a causal element in the making of the contribution.

'(b) The dissemination of factual information concerning a public official's voting record does not fall within the prohibitions of Sections 86200, Et seq.'

The trial court's temporary injunction, herein appealed from, reads as follows:

'IT IS ORDERED that during the pendency of this action or until further order of the Court, Intervenor FAIR POLITICAL PRACTICES COMMISSION, its agent, officers, employees and representatives, and all persons acting in concert or participating with them, are hereby enjoined from commencing proceedings as civil prosecutor against and lobbyist based on the single act of advising or making a recommendation to the employer of the lobbyist with regard to the making of a political contribution, where the advice or recommendation results in a contribution from the employer.'

The present appeal presents two problems: (1) does the commission's interpretation of the words 'arrange for' properly reflect the meaning and purpose of section 86202; and (2) if so, is the section, as so interpreted, a violation of the constitutional right of free speech. For the reasons set forth below we conclude that the commission has properly interpreted the statute but that the statute, so interpreted, is unconstitutional.

I

As the commission points out, the statute expressly prohibits a lobbyist from making a contribution personally, or from acting as 'an agent or intermediary' in such a contribution. Applying the usual doctrine that a statute should be interpreted in such a manner as to give effect to all of its provisions, the commission was within a legitimate exercise of its power of interpretation in concluding that the words 'arrange for' were included to prevent the exact practice herein involved--namely action by a lobbyist designed and intended to cause his employer to make a contribution.

Because the statute does not prohibit the employer of a lobbyist from making a political contribution, it does not entirely eliminate the potential effect of such a contribution on the vote or position of an officeholder. Thus, if an employer, without any communication whatsoever with a lobbyist, makes a contribution to an officeholder or to a candidate for office, the potentiality of influence by the unparticipating lobbyist will still exist. The officeholder may well look with increased favor on a lobbyist representing resenting a financial friend. In fact, a contribution lawfully can be made by one interested in pending or potential political action before that person has retained a lobbyist to present his views when action becomes imminent. The potentiality of influence will be the same.

Faced with that inescapable fact, the statute and the commission have attempted to limit what the statute did not, and the commission cannot, prevent in its entirety. While persons interested in potential governmental action may make political contributions because of their own concepts of their own interests, the chances of a decision to...