Meeting Date: April 27, 2004
Subject/Title: Consideration of New Municipal Campaign Activities
Prepared by: Dennis Beougher, City Attorney
Submitted by: Dennis Beougher, City Attorney
Should the City Council adopt regulations concerning limiting campaign
contribution for municipal elections?
Mayor Swisher asked that City staff prepare a report concerning regulation
of municipal campaign activities, particularly focusing on limiting campaign
I have prepared, with the assistance of Karen Diaz, City Clerk, various
election reform efforts to regulate local political campaigns. I have not
evaluated the relationship among each of the concepts discussed in this
memorandum and provisions of the Political Reform Act (PRA) or related
guidelines promulgated by the Fair Political Practices Commission (FPPC) or
conducted any detailed analysis of these concepts in light of relevant case
law. This office will conduct a thorough legal assessment of any concept the
City Council selects for further consideration.
BASIC LEGAL PRINCIPLES
Political activity is “pure speech” that is protected by the First
Amendment. Laws that restrict political activity are subject to “strict
scrutiny” by the courts. The following statements represent the basic legal
principles that we believe, based on my analysis of relevant case law, are
applicable to the regulation of municipal elections and associated
1. A city can establish reasonable limits on the amount of contributions to
candidates or controlled committees;
2. A city cannot limit the amount of independent expenditures made by any
person or group with respect to any election absent public funding;
3. A city cannot regulate the content of campaign material disseminated by
any person or group;
4. A city can require a disclosure of campaign material when disseminated;
5. A city may be able to disqualify a member of a city council from voting
on matters affecting contributors or persons providing services to a
candidate, the relevant issue will be the extent to which the regulation
seeks to avoid the appearance of a conflict of interest.
While I am not making any recommendations, the potential regulations
identified in this memorandum represent the type of restrictions that are
consistent with the legal principles and are likely to survive a legal
1. Require candidates to personally approve the content and funding of any
communication sent to more than 200 people that is intended to influence the
voters. The intent of this requirement is to ensure that the candidate is
aware of, and personally responsible for, the content of all campaign
material disseminated to a substantial number of voters. This type of
regulation has not been the subject of any court proceeding but I believe
that it would be upheld and that only a candidate would have standing to
file a legal challenge.
2. Require the text of any publication or communication sent to more than
200 people and intended to influence voters to be filed with the City Clerk
concurrently with dissemination. This regulation would not prevent last
minute efforts to influence voters with false information but would
discourage that activity given the potentially negative impact of
disclosure. The disclosure would be limited to “substantially similar”
communications and would not prevent candidates/supporters from going “door
to door” to discuss issues with voters.
3. Prohibit persons or committees from acting as intermediaries for
contributions in excess of $250.00 per election/calendar year to any
candidate. The $250 amount per election/calendar year reflects a
determination that any contribution in excess of that amount represents an
appearance of conflict. Also, after a review of the 42 surveyed (See Exhibit
A attached hereto), $250 limit per election/calendar year appears to be the
most popular limit. However, I propose a default to the PRA in terms of
definitions and reporting requirements. This may not specifically prevent
persons or committees from acting as intermediaries for others who seek to
contribute to a candidate.
4. Require disclosure of persons performing professional services. I believe
that a properly drafted ordinance could require members of the City Council
to disclose the identity of persons who (a) are likely to benefit from the
grant or contract and (b) who have performed professional services (for
which they received compensation in excess of a monetary threshold) for the
member within a defined period of time (generally 12 months before or after
5. Require candidates and their treasurers to undergo training. I believe
that the City can require a candidate and his/her treasurer to undergo
mandatory training with respect to the proposed ordinance and the PRA, as a
condition to having the candidate’s name placed on the ballot.
The possible regulations discussed in this memo represent those areas that I
identified as most likely to survive a legal challenge. The City Council may
want to pursue some of these concepts or ask me to evaluate other
A draft ordinance is attached for your review.
ORDINANCE NO. ________
AN ORDINANCE OF THE CITY OF BRENTWOOD ENACTING A NEW CHAPTER ____ TO BE
ADDED TO THE BRENTWOOD MUNICIPAL CODE TO REGULATE POLITICAL CAMPAIGN
CONTRIBUTIONS AND EXPENDITURES
BE IT ORDAINED BY THE CITY OF BRENTWOOD, as follows:
SECTION 1: That a new Chapter ______ (entitled “Political Campaign
Contributions”) is added to the Brentwood Municipal Code to read as follows:
POLITICAL CAMPAIGN FINANCE REFORM ACT
FINDINGS AND PURPOSES
_______. In 1974, the voters of California approved a far reaching
initiative measure commonly known as Proposition 9. The provisions of
Proposition 9 (entitled “Political Reform” - § 81000 et seq.). This
enactment is commonly referred to as the “Political Reform Act of 1974,”
hereinafter the “Political Reform Act.” Among other things, the state
Political reform Act subjected all public officials to rigorous conflicts of
interests provisions and imposed explicit regulation and accountability for
political campaign contributions and expenditures on elected officials.
This Chapter ______ shall be known as the City of Brentwood Political
Campaign Reform Act (“Act”). It is intended to supplement the provisions of
the state Political Reform Act, as the state law is amended from time to
time. In some instances, the Act is intended to be a convenient, single
source reminder of the applicable state law. In other instances, the
provisions of the Act are expressly intended to be more restrictive than the
_______. Findings and Declarations.
In enacting this Chapter _______, the following Findings and Declarations
a. Monetary contributions to political campaigns are a legitimate form of
participation in the American political process, but the financial strength
of certain individuals or organizations should not permit them to exercise a
disproportionate or controlling influence on the election of candidates.
b. The rapidly increasing costs of political campaigns have forced many
candidates to raise larger and larger percentages of money from individuals
and interest groups with a specific financial stake in matters before the
City Council. This has caused a public perception that votes are being
improperly influenced by monetary contributions to candidates. This
perception is undermining the credibility and integrity of the governmental
c. High campaign costs are forcing officeholders to spend more time on
fundraising and less time on the public's business. The periodic pressure to
raise contributions distracts officeholders from urgent governmental
d. The integrity of the governmental process, the competitiveness of
campaigns and public confidence in local officials are all diminishing.
e. Receipt of campaign contributions and campaign expenditures in municipal
election campaigns should be fully and truthfully disclosed in order that
the voters may be fully informed about a candidate's sources of campaign
_______. Purpose of this Chapter ______.
This Chapter ______ is to be liberally construed to effectuate the following
a. Ensure that individuals and interest groups in the City have a fair and
equal opportunity to participate in the municipal elective and governmental
b. Reduce the influence of large contributors with a specific financial
stake in matters before the City Council, thus countering the perception
that decisions are influenced more by the size of contributions than the
best interests of the people of the City.
c. Encourage candidates to limit their overall expenditures in campaigns,
thereby reducing the pressure on candidates to raise large campaign war
chests for defensive purposes, beyond the amount necessary to communicate
reasonably with voters.
d. Increase the value of smaller contributions to candidates.
e. Reduce the fund raising advantage of incumbents and thus encourage
competition for elective office.
f. Allow candidates and officeholders to spend a lesser portion of their
time on fund raising and a greater portion of their time dealing with issues
of importance to their constituents.
g. Improve the disclosure of contribution sources in reasonable and
h. Help restore public trust in governmental electoral institutions.
This page amended by the addition of "contribution" 82015 of the Govt. Code.
_____Interpretation of this Chapter _____.
Because of the thoroughness of the state Political Reform Act statutory
scheme, unless a term is specifically defined in this Chapter ______, or the
contrary is stated (or clearly appears from the context), the definitions
set forth in Chapter 2 ("Definitions" - §82000 et seq. of the Government
Code) of the state Political Reform Act shall govern the interpretation of
the provisions of this Chapter ______. For example, "Contribution" is
defined by §82015 of the Government Code.
a. "Election cycle" means that period commencing on May 31st of a general
election year and concluding on December 31st of that same year. If a
special election is conducted, the election cycle will commence on the first
day of the month at least six months before the election and shall conclude
on the last day of the month following the election (i.e., assume a March
date is used for a City special election for an elective office; September
1st (the first day of the month at least six months before the election
date) would be the first day of the election cycle and May 31st (the last
day of the month following the election) would be the last day of the
b. "Time restrictions on contributions and expenditures" means the last day
a contribution can be deposited is ten (10) calendar days before the
election date (i.e., a November 2nd election would make October 23rd the
last day to deposit a contribution). Payment of campaign bills shall
terminate on the last day of the month following the election (i.e., a
November election would require that all bills be paid by December 31st -
the last day of the month following the election).
_______. Limits on Contributions From Persons.
a. No person shall make to any candidate for office and the controlled
committee of such a candidate and no such candidate and the candidate's
controlled committee shall accept from any such person a contribution or
contributions totaling more than two hundred fifty dollars ($250.00) during
the election cycle for each election in which the candidate is on the ballot
or is a write-in candidate. (See below, Article 4 "Voluntary Expenditure
Limits" for the exception to this two hundred fifty dollar ($250)
b. No person shall make to any committee which supports or opposes any
candidate and no such committee shall accept from each such person a
contribution or contributions totaling more than two hundred fifty dollars
($250.00) during the election cycle for each election in which the candidate
is on the ballot or is a write-in candidate.
c. Nothing in this Chapter ______ shall prohibit a candidate from making
unlimited contributions to his/her own campaign.
d. Candidates shall be bound by the "Time restrictions on contributions and
expenditures" defined in section _______
_______. Prohibition on Transfers of Campaign Contribution Funds.
No candidate and no committee controlled by a candidate or officeholder
shall make any contribution to any other candidate running for office or to
any committee supporting or opposing a candidate for office.
_______. Return of Contributions.
A contribution shall not be considered to be received if it is not
negotiated, deposited or utilized, and, in addition, if it is returned to
the donor within fourteen (14) calendar days of receipt.
_______. Aggregation of Payments.
For purposes of the contributions limits in this Article 3 ("Contribution
Limits"), the following shall apply:
a. All payments made by a person, as broadly defined in the Political Reform
Act, whose contributions or expenditure activity is financed, maintained or
controlled by any corporation, labor organization, association, political
party or any other person or committee, including any parent, subsidiary,
branch, division, department or local unit of the corporation, labor
organization, association, political party or any other person, or by any
group of such persons shall be considered to be made by a single person,
committee or small contributor political action committee.
b. Two or more entities shall be treated as one person when any of the
following circumstances apply:
1. The entities share the majority of members of their boards of directors.
2. The entities share two or more officers.
3. The entities are owned or controlled by the same majority shareholder or
4. The entities are in a parent-subsidiary relationship.
c. An individual and any general partnership in which the individual is a
partner, or an individual and any corporation in which the individual owns a
controlling interest, shall be treated as one person.
d. No committee which supports or opposes a candidate for office shall have
as officers individuals who serve as officers on any other committee which
supports or opposes the same candidate. No such committee shall act in
concert with, or solicit or make contributions on behalf of any other
committee. This subdivision shall not apply to treasurers of committees if
these treasurers do not participate in or control in any way a decision on
whether the candidate or candidates receive contributions.
_______. Loans from Third Party Sources.
a. A loan shall be considered a contribution from the maker and the
guarantor of the loan and shall be subject to the contribution limits (two
hundred fifty dollars ($250.00)
b. Every loan to a candidate or the candidate's controlled committee shall
be by written agreement and shall be filed with the candidate's or
committee's campaign statement on which the loan is first reported.
c. The proceeds of a loan made to a candidate by a commercial lending
institution in the regular course of business on the same terms available to
members of the public and which is secured or guaranteed shall not be
subject to the contribution limits of this chapter.
d. Extensions of credit (other than commercial loans pursuant to section
______ or a period of more than thirty (30) calendar days are subject to the
contribution limits of this chapter.
_______. Family Contributions.
a. Contributions by a husband and wife shall be treated as separate
contributions and shall not be aggregated.
b. Contributions by children under eighteen (18) years of age shall be
treated as contributions by their parents and attributed proportionately to
each parent (one-half to each parent or the total amount to a single
_______. Money Received by Officials Treated as Contributions, Income or
Any funds received by an elected official or candidate running in the City
or any committee controlled by such an official or candidate shall be
considered either a campaign contribution, income or a gift. All campaign
contributions received by such persons shall be subject to the provisions of
this Chapter ______ unless such campaign contributions are used exclusively
for elections held outside the City. All income and gifts shall be subject
to the disqualification provisions of the state Political Reform Act.
_______. One Campaign Committee and One Checking Account Per Candidate.
A candidate shall have no more than one campaign committee and one checking
account out of which all expenditures shall be made. This section shall not
prohibit the establishment of savings accounts, but no qualified campaign
expenditures shall be made out of these accounts.
_______. Limit on Cash Contributions; Cash Expenditures.
This section is a reminder of a portion of the provisions of Government Code
§84300 pertaining to cash:
a. No contribution of one hundred dollars ($100) or more shall be made or
received in cash.
b. No expenditure of one hundred dollars ($100) or more shall be made or
received in cash.
The remaining provisions of Government Code §84300 shall remain in effect.
_______. Limit on Anonymous Contributions. Govt. Code 84304 - $100
No person shall make an anonymous contribution(s) to a candidate or
controlled committee totaling one hundred dollars ($100.00) or more in any
election cycle. An anonymous contribution of one hundred dollars ($100.00)
or more shall not be kept by the intended recipient, but shall instead be
promptly paid to the City Clerk for deposit in the general fund of the City.
_______. Contributions on Behalf of Others Prohibited.
No contribution shall be made, directly or indirectly, or anything belonging
to another person or received from another person on the condition that it
(or part of it) be used as a contribution. No contribution shall be made,
directly or indirectly, by any person on behalf of another person.
_______. Civil Actions.
a. Any person who intentionally or negligently violates any provision of
this Chapter ______ shall be liable in a civil action brought by a person
residing within the City for an amount not more than three (3) times the
amount of the unlawful contribution or expenditure.
b. If two or more persons are responsible for any violation, they shall be
jointly and severally liable.
c. In determining the amount of liability, the court may take into account
the seriousness of the violation and the degree of culpability of the
defendant. If a judgment is entered against the defendant or defendants in
an action, the plaintiff shall receive fifty percent (50%) of the amount
recovered. The remaining fifty percent (50%) shall be deposited into the
general fund of City. In an action brought by the District Attorney, the
judgment shall be paid to the general fund of the County of Contra Costa.
d. No civil action alleging a violation of any provision of this Act shall
be filed more than two (2) years after the date the violation occurred.
The provisions of section Effect of Violation on Outcome of Election.
If a candidate is found by a court (or jury) to have violated any provision
of this Chapter ______, the court shall make a determination as to whether
the violation had a material effect on the outcome of the election. If the
court finds the violation did have a material effect on the election, the
following will apply.
a. If the court determination becomes final before the date of the election,
the votes for such candidate shall not be counted and the election shall be
determined on the basis of the votes cast for the other candidates in that
b. If the court determination becomes final after the date of the election,
and if such candidate was declared to have been elected, then such candidate
shall not assume office, the office shall be deemed vacant and shall be
filled as otherwise provided in the City Charter and City Code;
c. If the court determination becomes final after the candidate has assumed
office, then the candidate shall be removed from office, the office shall be
deemed vacant and shall be filled as otherwise provided in the City Charter
and City Code;
d. The court may determine the candidate shall be ineligible to hold any
elective City office for a period of four (4) years after the date of such
court determination that a violation occurred.
e. In a criminal proceeding, a plea of nolo contendere shall form the basis
for a court determination of the impact of the violation of Chapter ______
_______. Injunctive Relief.
Any person residing in the City may sue for injunctive relief to enjoin
violations or to compel compliance with the provisions of this Chapter
_______. Cost of Litigation.
The court may award to a plaintiff or defendant who prevails in any action
authorized by this Chapter ______, costs of litigation, including reasonable
In addition to any other penalties prescribed by law, if an official
receives a contribution in violation of this Chapter ______, the official
shall not be permitted to make, participate in making or in any way attempt
to use his/her official position to influence a governmental decision in
which the contributor has a financial interest. The provisions of Government
Code §87100 et seq., and the regulations of the Fair Political Practices
Commission shall apply to interpretations of this Section.
ADDITIONAL DISCLOSURE REQUIREMENTS
_______. Additional Pre-Election Campaign Statement.
The Political Reform Act provides for various campaign statements to be
filed on dates determined by the Fair Political Practices Commission. The
second pre-election statement has a filing deadline approximately three (3)
weeks before the election. In addition to the state required pre-election
campaign statements, seven (7) calendar days before the election, all
candidates shall submit to the city, on a city form, a campaign disclosure
_______. Disclosure of Occupation and Employer of Contributor.
No contribution shall be deposited into a campaign checking account unless
the name, address, occupation and employer of the contributor is on file in
the records of the recipient of the contribution.
_______. Submission of Typed Campaign Disclosure Statements.
All submissions of campaign disclosure statements shall be submitted typed
or in an electronic media form acceptable to the City Clerk. It is the
intent of the City to give the voting public access to the campaign
disclosure statements through the use of modern media resources.
_______. Duties of the Local Filing Officer.
The local filing officer shall:
a. Prescribe the necessary forms for filing the appropriate statements.
_______. Applicability of Other Laws.
Nothing in this Chapter ______ shall exempt any person from applicable
provisions of any other laws of this state or the City."
SECTION 2: Constitutionality, severability.
If any section, subsection, sentence, clause, phrase or word of this
ordinance is for any reason held by a court of competent jurisdiction to be
unconstitutional or invalid for any reason, such decision shall not affect
the validity of the remaining portions of the ordinance. The City Council
hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause, phrase and word thereof, irrespective of the
fact that any one or more section(s), subsection(s), sentence(s), clause(s),
phrase(s) or word(s) be declared invalid.
SECTION 3: Savings Clause.
The changes provided for in this ordinance shall not affect any offense or
act committed or done or any penalty or forfeiture incurred or any right
established or accruing before the effective date of this ordinance; nor
shall it affect any prosecution, suit or proceeding pending or any judgment
rendered prior to the effective date of this ordinance.
SECTION 4: Effective Date.
This ordinance shall take effect thirty (30) days after its final adoption.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at
a regular meeting on the __ day of April, 2004 by the following vote: