City Council Meeting 7-10-01 Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Ordinance Adding Section 11.04.175 to the Municipal Code Relating to Initiative Petitions
The City Council has directed staff to evaluate various proposals for ensuring the integrity of the initiative process. This staff report responds to that directive and is accompanied by a proposed ordinance which would address the Council=s concerns by mandating the preparation and disbursement of an Initiative Information Sheet intended to educate the public in general, and potential petition signers in particular, of existing legal requirements, including voters rights and circulators= responsibilities. This staff report also responds to Council=s questions regarding CityTV and Web coverage and, if applicable, electronic campaign disclosure during the signature gathering period and during the election cycle.
During the last election cycle concerns were expressed about certain tactics allegedly used by persons circulating initiative petitions. Some of these circulators were apparently paid significant amounts per signature, giving them a substantial financial incentive to communicate misleading information about the proposed measure.
In response to these concerns, the Council directed staff to evaluate various possibilities for protecting and regulating the initiative process. Generally speaking, these possibilities fell into two categories: regulating circulators and adopting new regulations relating to financial disclosure. This report addresses both categories and includes a summary of applicable law.
Law on Regulating Circulators
Suggestions for regulating circulators have included both prohibiting or restricting paid circulators and requiring affirmative disclosure of compensation agreements. The former approach is legally problematic because the United States Supreme Court has recently invalidated two laws imposing qualifications on petition circulators.
In Meyer v. Grant, 486 U.S. 414 (1988), the Court reviewed a Colorado law banning paid circulators. Colorado argued that the law was necessary to protect the integrity of the initiative process and ensure grass roots support for ballot measures. The Court rejected these arguments and invalidated the law reasoning that it imposed an undue burden on Acore political speech@ by reducing Athe number of voices who will convey . . . the message.@ The law thereby diminished Athe size of the audience [proponents] can reach.@ 486 U.S. at 422.
In Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), the Court applied the same rationale to strike down a Colorado statute which required all circulators of statewide initiative petitions to be registered Colorado voters. As in Meyer, the statute was found to violate the First Amendment because it diminished political speech and because the state=s rationale for the requirement was not compelling.
Based on Buckley, the Attorney General reviewed California Elections Code Section 9209. That section governs municipal initiatives and requires circulators to be voters of the city. The Attorney General concluded that Section 9209 is unconstitutional under Buckley. Therefore, circulators of municipal initiative petitions need not be city voters or city residents. 82 Ops. A.G. 250. Additionally, the Attorney General=s office has informally reached the same conclusion regarding circulators of referendum petitions.
These decisions illustrate the proposition that restrictions on the circulation process will be very strictly scrutinized by the courts. Existing protections will be seen by the courts as adequate to preserve the integrity of the process given First Amendment principles favoring maximum communication of political views.
In California, state law already protects the integrity of the circulation process in several ways. Each initiative petition must include the ballot title and summary prepared by the City Attorney, both of which must characterize the measure accurately and objectively. Moreover, each petition must contain language advising potential signers that they may ask the circulator whether he or she is being paid to collect signatures. State law also prohibits the circulator from making false or misleading statements about the measure. Elections Code Section 18600 makes it a misdemeanor for the circulator to intentionally misrepresent the content or effect of the measure to a potential signer. Section 18601 makes it a misdemeanor for a circulator to refuse to allow a prospective signer to read the contents of the measure or the petition. Finally, any voter who signs a petition and then decides to withdraw his or her signature may do so by filing a request for withdrawal with the City Clerk before the petition is filed.
Law on Financial Disclosure
State law also extensively regulates financial disclosure. The Political Reform Act, Government Code Section 87000, et seq., imposes numerous requirements. The Fair Political Practices Commission has adopted detailed implementing regulations. Moreover, both the integrity of the election process and campaign financing are matters of statewide concern. County of Sacramento v. FPPC, 271 Cal. Rptr. 802 (1990). Therefore, cities= powers to regulate in these specific areas are likely limited by state law.
There are various options for protecting the integrity of the circulation process by maximizing the accurate information available to voters.
Regulating Circulators and Disclosure
The Meyer and Buckley decisions, together with the California Attorney General=s opinions effectuating them, mean that disclosure requirements are a much better option for the City than attempting to restrict the use or percentage of paid circulators. However, even requiring affirmative disclosure of whether a circulator is paid and the terms of payment may be legally problematic. The City would need to identify and rely upon a Acompelling@ governmental interest. Moreover, the Council would likely need to specify why present protections in state law are inadequate. As noted above, those protections include criminal sanctions for circulators misrepresenting a measure=s intent. They also include a notification on the petition that the potential signatory may ask the circulator if he or she is paid. In addition to constitutional concerns (including First Amendment rights and privacy), the possibility exists that the state notification requirement preempts additional local requirements such as affirmative disclosure. Moreover, as a practical matter, the existence of these statewide protections may enable the City to address any problems which arise through education and enforcement, at least in the first instance. If such efforts prove unsuccessful, that endeavor would presumably help establish the City=s need to adopt local measures.
In reviewing state law relevant to the Council=s concerns, staff noted that the efficacy of several of the state safeguards depends upon potential signers reading the petition before deciding to sign. In fact, this may not occur. Many petitions are very long. The print is small. The circulator may approach the potential signer under circumstances antithetic to careful consideration of the petition=s and measure=s content. Additionally, voters may be unaware of the existing legal requirements which safeguard their rights and the integrity of the initiative process. Given these practical realities and the uncertainty of the City=s legal power to alter the circulation process, staff recommends a course of public education and enforcement as a first step. If experience shows that more regulation is needed, that experience may justify additional local enactments, including enactments regulating circulators and their obligations to make affirmative disclosures regarding their own pay and campaign financing.
Initiative/Charter Amendment Information Sheet
The proposed ordinance would require the preparation and disbursement of a simple Initiative Information Sheet which would advise voters (and circulators) of the current requirements of law. Attached is a draft of the proposed information sheet which defines the term Ameasure,@ gives a brief description of how a measure gets placed on an election ballot, explains why signatures are needed on a petition, and explains how to withdraw a signature from a petition and where to get additional information on the process or on the measure. Circulators would be required to make it available to potential signers, and it could also be widely distributed to the public in other ways.
The City Clerk has provided the following information on CityTV programming on initiatives and electronic campaign disclosure during the initiative process.
Programming on CityTV
CityTV could provide three types of programming on initiatives.
C Five minute statements by proponents and opponents of the initiative. Two five minute interviews could be conducted by CityTV with one five minute interview with the proponent and one five minute interview with the opponent of the initiative. Each side could discuss the strengths and weaknesses of the initiative and the issues to be considered when voting for or against the initiative.
C League of Women Voters discussion program. CityTV has in the past produced a talk show format program on initiatives in cooperation with the League of Women Voters. League members prepare statements about the initiative and summarize what those who are for and against the initiative are saying.
C News show format. As a pilot program for the last election, CityTV produced a news style program on initiatives. Reporters produced news packages about each initiative and included visuals, interviews and charts to explain the initiatives. The packages contained interviews with those for and against the initiative. These were tied together with an anchor in a studio.
The costs for these various options would vary depending on the number of initiatives in any one election and whether the productions could be consolidated with other CityTV election programming activities to achieve cost savings.
Electronic Campaign Disclosure
Council directed staff to analyze the possibility of providing for electronic filing of campaign statements if the City were to consider implementing campaign contribution disclosure requirements during the signature gathering period of a measure. Staff analyzed the Secretary of State=s existing electronic filing program and is presenting two options for establishing this policy, should it become feasible.
State=s Filing Program
The State=s program is interactive and, in addition to providing the information on-line quickly, it is also used to gather and compile data for reports and statistics published by the State. In order to safeguard against fraud, each user is assigned an identification number and a password. In addition, the committee is still required to file a hard copy containing an original signature. The State is currently researching the possibility of digital signatures on electronic filings.
On the down side, almost everyone using the interactive program requires technical assistance and the State expects to receive at least three phone calls per user. Because the deadlines for electronic filing are the same as for hard copy, when the deadline is approaching, the requests for technical assistance overwhelm staff and the program. The State created a division dedicated to maintaining the program, and includes 8 full-time analysts, 1 full-time and 3 part-time technical employees, and the consultant who developed the forms and program, who is on site. To date, the State has spent approximately one million dollars to implement the program, and the maintenance costs are on-going and permanent.
If the main purpose of this project is to have the information accessible to the public on the City=s website, a simpler option is to scan the campaign statements into the website as soon as they come in. The viewable information will be exactly the same as that printed on the hard copy, but will serve no other purpose. However, this option is relatively simple and has minimum cost.
There is one issue for discussion in considering the scanning option. Campaign statements contain the names and addresses of contributors, whether they are individuals, businesses, or companies. Of course, because it is contained in a campaign statement, this information is already public. However, it is a long reach from having it available to members of the public in the City Clerk=s office, to posting this information on the world wide web.
Currently, when staff posts information to the website for board and commission members, it does so only with permission of the member. Because of the logistics involved in soliciting and receiving contributions, it is not feasible to expect that the candidate or committee member will obtain the permission of all its contributors. Attached is a copy of a disclosure page posted on the Secretary of State=s website (http://www.ss.ca.gov/) for Proposition 34. The contributors are only listed by name; their addresses are not included.
Finally, for your information, be advised that for the near future, there is no technology available that would allow a visually impaired person to use a screen reader to read a scanned document.
Adoption of the proposed ordinance would, in itself, have no financial impact.
Staff recommends that the Council introduce the attached ordinance for first reading and approve the form of the proposed information sheet.
PREPARED BY: Marsha Jones Moutrie, City Attorney
Joseph Lawrence, Assistant City Attorney
ATTACHMENTS: A. Proposed Ordinance
C. Disclosure Page from Secretary of State=s Website (Not available electronically. Available at the City Clerk’s Office or at public libraries.)