History Behind 208 & 212

San Diego Review December 1, 1996

History Behind 208 and 212

Watch what happened to much of former reforms be repeated in courts…

By Dwayne Hunn

California’s Fair Political  Practices Commission exists today thanks to People’s Lobby’s Political Reform Initiative of 1974, Prop 9, one of  the nation’s first and toughest campaign reform initiatives which  garnered about 70% of the vote.   Common Cause  and  Gubernatorial candidate Jerry Brown wanted to launch their own campaign reform but grudgingly joined because People’s Lobby had experienced volunteer signature gatherers who had put measures on the ballot, while neither of them had done such.  Prop 9’s campaign spending limits were .07 and .09 cents per voter in the primary and general elections.  Had those limits been applied to the 1970 Gubernatorial General Election race between Democrat Jesse Unruh and Republic Ronald Reagan, Unruh would have had to cut out $368,448 and Reagan $1,590,026 of spending.

Be ready to watch what happened to much of the guts of the Political Reform Act of 1974 be repeated and reargued with new faces over the next few years with Proposition  208.  In 1977 Senator Holden repealed campaign spending limits with his Senate Bill 883.  By 1979 the California Supreme Court, ruling on the Fair Political Practices Commission v. Institute of Governmental Advocates, held that “the prohibition against lobbyist contributions to political campaigns…. is a substantial limitation on associational freedoms guaranteed by the First Amendment and is invalid.” The California Court felt ‘compelled’ by the US Supreme Court’s 1976 Buckley v. Valeo in which the validity of  the provisions of the Federal Election Campaign Act (FECA) of 1971 were debated. The FECA limited political contributions by individuals to $1,000 for any candidate and $25,000 total.  The court held that the contribution limitations restrict the contributor’s freedom of association, “a basic constitutional freedom.”  This substantial limitation on  a lobbyist’s freedom of association may be upheld only if the “State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.”

The campaign limitations embodied in 208 will rise or fall based on  how:

¨       “sufficiently important” proponents’ attorneys make  the courts feel the need for campaign reform is, and

¨       “closely drawn” campaign spending limits are determined to be in the law,  so as not to infringe on Constitutional rights of free speech and association.

Proposition 208 with its “voluntary campaign spending limit” agreement that entices candidates by “doubling contribution limits”  probably has a higher probability of passing the courts “closely drawn” strictures than 212 would have.

The narrow defeat of  Prop 212 at least relieves us of reliving the history of  court arguments over which sections of  two similar 1988 campaign contribution limitation bills should prevail. Common  Cause’s  Prop 68, which called for taxpayer paid elections, and Senator Kopp and Assemblyman Johnson’s Prop 73, which banned taxpayer paid elections,  both won, with 53% and 57% respectively.  With Prop 73 in effect California campaign spending fell from $79.4 in 1988 to $52 million in 1990.     In 1992 the Federal court struck down the limits and 1992’s spending rebounded to $71.9 million,  and the courts held that Prop 68 campaign limits could not then replace Prop 73’s.

These will be interesting court times for more than just the Chicago Bulls and LA Lakers.

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