Are members of California's Fair Political Practices Commission banned from donating to presidential and congressional campaigns?

Plain-English summary

California's Political Reform Act, the post-Watergate voter initiative that created the Fair Political Practices Commission (FPPC), tells Commissioners that during their tenure they "shall not . . . participate in or contribute to an election campaign." For most of the FPPC's history, the agency's own manual interpreted that ban to cover federal elections held in California, but in 2019 a Commissioner donated to Bernie Sanders's presidential campaign, the Commission temporarily suspended the rule, and then asked the Attorney General to settle whether the statute actually reaches federal races.

Attorney General Rob Bonta said yes, decisively. The Political Reform Act defines "election" as "any primary, general, special or recall election held in this state." A presidential, Senate, or House election held in California fits that definition. When the drafters wanted to exclude federal contests they used different terms ("statewide election," "elective state office," "state candidate," and so on), all of which expressly carve out federal races. They did not do that in section 83105. They used the broader "election" instead.

The opinion also explains why the rule still makes sense substantively. The FPPC enforces the Act against state and local candidates who often later become federal candidates, oversees rules that touch federal races (the surplus campaign funds rule in section 89519, the section 84308 "no-pay-to-play" rule, federal candidate ballot pamphlet statements), and was designed by voters to be a "tough, nonpolitical" body. Letting Commissioners donate to federal campaigns would undermine that impartiality.

What this means for you

Verify these statutes have not been amended since 2022 before relying on the specific framework.

If you are an FPPC Commissioner

Your contribution ban covers federal candidates running in California. Donating to a presidential candidate, a U.S. Senate candidate, or a House candidate from any California district falls within the prohibition. The opinion expressly endorses the Commission's manual on this point. Out-of-state federal contests (a Senate race in Nevada, a House race in Ohio) sit outside the literal text because they are not "held in this state," but the opinion does not affirmatively bless those contributions and a cautious reading of the statute's "tough, nonpolitical" purpose suggests not pushing the line.

If you are a recently appointed Commissioner reviewing your contribution history

Section 83105 prohibits contributing during your tenure, not before. Past contributions are not the issue. Contributions made after your appointment to a federal candidate running in California are. If you have made any since being appointed, talk to FPPC counsel about disclosure and remedies.

If you advise the FPPC or run a state agency that includes a similarly structured commission

The opinion is a useful precedent for reading "election" terms in voter-enacted statutes broadly when the Act elsewhere uses narrower terms ("statewide," "state candidate," "elective state office") to mean something narrower. It also illustrates the limits of implied amendment doctrine: when the Legislature changed who collects federal candidate disclosures in California, that did not impliedly carve federal candidates out of the section 83105 ban.

If you cover government ethics as a journalist or watchdog

The case is a clean example of the FPPC asking an outside legal authority to check its own practice rather than litigating internally. The 2019 episode that prompted the request (a Commissioner donating to a presidential candidate, the Commission suspending the rule, then reinstating it pending this opinion) is itself the kind of process story that demonstrates the structural tension between the Commission's independence and its enforcement role.

Common questions

Q: Does the ban cover contributions to federal candidates running in other states?
A: The opinion is grounded in the statutory definition of "election," which says "held in this state." A federal contest happening only in another state is, on the literal text, outside the definition. The opinion does not address out-of-state federal contributions directly.

Q: Does the ban cover contributions to federal political party committees or PACs?
A: The opinion is about contributions to "an election campaign." Party committees and PACs that operate independently of a specific federal election held in California present a different question that the opinion does not directly resolve.

Q: Can a Commissioner volunteer for or attend events for a federal candidate?
A: Section 83105 prohibits both contributing to and "participat[ing] in" an election campaign. Both verbs come with the broad "election" definition the opinion applies. Active participation in a federal candidate's campaign in California is on the wrong side of the line.

Q: How does this fit with First Amendment rights to political contributions?
A: The AG explicitly noted at footnote 10 that the question presented was statutory interpretation only, and that "[w]e have been asked only to interpret the statute, not to resolve any potential free-speech issue that might arise under the state or federal Constitution." The First Amendment question remains open as a litigation matter.

Q: How long does the ban last?
A: Section 83105 applies during the Commissioner's tenure. The prohibition on seeking another public office continues during the appointment term.

Background and statutory framework

California voters enacted the Political Reform Act in 1974 as a post-Watergate response to perceived inadequate enforcement of election laws. The Act regulates lobbying, conflicts of interest, and campaign disclosures, and created the FPPC as the independent enforcement body. The Commission's structure is designed to limit partisan capture: five Commissioners, no more than three from the same political party, with appointments split among the Governor, Attorney General, Secretary of State, and Controller.

Section 83105 places conflict-of-interest restrictions on Commissioners during their tenure: they cannot hold other public office, serve as an officer of a political party or partisan organization, work as a lobbyist, or "participate in or contribute to an election campaign." During their term of appointment they also cannot seek another public office.

Section 82022 defines "election" as "any primary, general, special or recall election held in this state." The Act's other definitions section (82000) provides that the Act's definitions govern "[u]nless the contrary is stated or clearly appears from the context." Several other Act terms expressly exclude federal races: "statewide election" (section 82052.5), "candidate" (section 82007(c)), "elective office" (section 82023), "elective state office" (section 82024), "state candidate" (section 82050), and "statewide elective office" (section 82053).

The historical context: when the Act was first enacted, section 84208 required federal candidates to file campaign disclosures with the California Secretary of State and certain county clerks. Federal law (the Federal Election Campaign Act amendments) preempted that requirement shortly thereafter, and the Legislature amended the Act to shift the disclosure-handling onus to the Secretary of State rather than the candidates. The AG considered and rejected the argument that this 1977 amendment impliedly removed federal candidates from section 83105's reach.

Even after preemption of the disclosure requirements, the FPPC still touches federal races through several other Act provisions:

• Section 89519: state and local candidates can use "surplus campaign funds" to support or oppose federal candidates, and the FPPC oversees the surplus determination and disclosure.
• Section 84308: officers of certain agencies cannot direct contributions over $250 to federal candidates from parties to pending agency proceedings.
• Section 88001(i): U.S. Senate candidates can buy 250 words in the state ballot pamphlet, and the FPPC could be drawn into disputes about that statement.
• Officials and candidates currently regulated by the FPPC may later become federal candidates, and the four-year statute of limitations on FPPC enforcement preserves the relevance of impartiality.

The AG's analysis of statutory purpose drew on the 1974 ballot pamphlet's promise of a "tough, nonpolitical commission" that would deliver "full, fair and independent enforcement of the law."

Citations and references

Statutes:
- California Government Code section 81000 et seq. (Political Reform Act of 1974)
- California Government Code section 82022 (definition of "election")
- California Government Code section 83105 (Commissioner conduct restrictions)
- California Government Code section 81012 (limits on amending the Act)
- California Government Code section 89519 (surplus campaign funds)
- California Government Code section 84308 (pay-to-play restrictions)
- California Government Code section 88001 (ballot pamphlet)
- 52 U.S.C. section 30143 (federal preemption of state campaign disclosure for federal candidates)
- U.S. Constitution, article I, section 4 (state legislatures regulate congressional elections)

Cases:
- Day v. City of Fontana, 25 Cal.4th 268 (2001) (statutory interpretation of voter initiatives)
- People v. Snyder, 22 Cal.4th 304 (2000) (Political Reform Act background)
- People v. Zeigler, 211 Cal.App.4th 638 (2012) (express definitions are binding)
- People v. Canty, 32 Cal.4th 1266 (2004) (same)
- Lennane v. Franchise Tax Bd., 9 Cal.4th 263 (1994) (do not interpret away clear language)
- Howard Jarvis Taxpayers Assn. v. Newsom, 39 Cal.App.5th 158 (2019)
- Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531 (1990) (implied amendment doctrine)
- Huening v. Eu, 231 Cal.App.3d 766 (1991) (Act's amendment limits apply to implied amendments)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/19-1001.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General

OPINION
of
ROB BONTA
Attorney General
CATHERINE BIDART
Deputy Attorney General

No. 19-1001
April 1, 2022

THE HONORABLE GALENA WEST, EXECUTIVE DIRECTOR OF THE FAIR POLITICAL PRACTICES COMMISSION, has requested an opinion relating to campaign contributions by Commissioners.

QUESTION PRESENTED AND CONCLUSION

Does Government Code section 83105, which bans campaign contributions by members of the Fair Political Practices Commission, apply to election campaigns for President and Congress?

Yes, the statutory ban applies to elections held in California, which includes elections for President and for seats in the United States Senate and House of Representatives.

BACKGROUND

The Fair Political Practices Commission administers and implements the Political Reform Act of 1974, which contains Government Code section 83105. The Act, adopted as a voter initiative measure in the wake of the Watergate scandal, seeks to prevent political corruption by regulating lobbying, conflicts of interest, and campaign disclosures, among other things. These concepts were not new in 1974, but voters determined that state and local authorities had inadequately enforced prior laws. So the voters established an independent government body to oversee implementation and enforcement of the Act: the Fair Political Practices Commission.

The Commission comprises five appointees; the method of their appointment is designed to limit partisan influence by spreading appointments across political parties. Voters entrusted the Commission with "primary responsibility for the impartial, effective administration and implementation" of the Act, to ensure that the Act would be "vigorously enforced."

To that end, the Commission has extensive oversight powers. For example, the Commission may investigate possible violations, hold hearings, order penalties, and compel disclosures. The Commission may also make rules and regulations, prescribe forms and publish manuals to facilitate compliance and enforcement, and issue opinions on which a requesting party may rely as a safe harbor.

The provision we consider here, Government Code section 83105, fosters impartiality by prohibiting Commissioners from engaging in certain political activities during their tenure. Commissioners may not serve as an officer of a political party or partisan organization, work as a lobbyist, or hold or seek another public office. Nor may Commissioners "participate in or contribute to an election campaign." This brings us to the issue at hand: whether this statutory ban on contributing to an election campaign applies to one for President or Congress.

The Commission's own manual provides that it does. But at its September 2019 meeting, the Commission decided to suspend its own rule against donations to federal candidates, reevaluate related manual provisions governing Commissioner conduct, and seek this Attorney General opinion. At its December 2019 meeting, the Commission decided to return to its rule embodied in its manual. The Commission's request for an Attorney General opinion on this topic remains open.

ANALYSIS

To interpret the scope of the statutory ban on FPPC Commissioner contributions to election campaigns, we look to the usual principles governing questions of statutory interpretation, which apply equally to a voter-enacted initiative such as the Act. As we explain below, the language, history, and purpose of Government Code section 83105 all compel the conclusion that the ban extends to all federal elections held in California.

Statutory Language

Government Code section 83105 provides in relevant part:

A member of the commission, during the member's tenure, shall not hold any other public office, serve as an officer of any political party or partisan organization, participate in or contribute to an election campaign, or employ or be employed as a lobbyist nor, during the member's term of appointment, seek election to any other public office.

Does this reference to "an election campaign" include one for President or Congress? Based on the definition of "election" provided in the Act, we believe it does. While silent on the meaning of "campaign" and "election campaign," Government Code section 82022 defines "election" to mean "any primary, general, special or recall election held in this state." A "general election" held in California includes federal elections for President, Vice President, and seats in the United States Senate and House of Representatives. Those federal elections therefore fall squarely within the Act's definition of an "election."

The Act states that its definitions govern the interpretation of the Act, "[u]nless the contrary is stated or clearly appears from the context." And nothing in the Act suggests an intent to alter the definition of "election" for section 83105. In contrast, other parts of the Act do provide customized definitions limited to particular sections. For example, one section of the Act limits gifts to Commissioners, and defines "gift" uniquely for purposes of that section, ousting the definition that would otherwise apply.

The Act's drafters demonstrated that they knew how to exclude federal elections when that was their intent. For instance, the Act separately defines "statewide election" to exclude elections for federal office. It also defines "candidate," "elective office," "elective state office," "state candidate," and "statewide elective office" in terms that exclude federal offices or federal candidates. But the Act does not use any of these other terms in section 83105. Instead, it uses the term "election," which is defined to encompass federal elections held in this State.

The definition provided in the Act is clear. We will not "interpret away clear language in favor of an ambiguity that does not exist." We therefore interpret the statute using the defined term for "election" in the Act, and conclude that section 83105 bars Commissioners from contributing to federal elections held within the State.

As noted above, the Commission's manual agrees with this conclusion. It provides that the statutory ban applies to "any primary, general, special or recall election held in this state," which echoes the Act's governing definition of election. It continues: "The Commission interprets this to include contributions to the campaign of any candidate for President and contributions to the campaign of any other candidate for federal office when the election is held in California."

Our interpretation of the text is also consistent with the history of amendments to the Act. The Act has been amended over 200 times. None of these amendments altered the language of the ban on contributions in Government Code section 83105. But the larger context of one amendment is arguably relevant to our analysis. When first adopted, the Act required certain campaign disclosures by federal candidates. Specifically, section 84208 stated that every person required by a provision of federal law (section 309(a) of Federal Election Campaign Act of 1971) to file any statement or report with the California Secretary of State, must file two copies and must also file two copies with certain county clerks. Candidates for President, Vice President, and United States Senate had to file their additional copies with the county clerks of Los Angeles and San Francisco; candidates for the United States House of Representatives had to file theirs with the clerk for each county in their congressional district.

As we have noted, the voters created the Commission to impartially administer and implement the Act, including the provision just described. The inclusion of federal candidates in that provision suggests that the voters intended Commissioners to remain impartial with respect to federal candidates, including by not contributing to the campaigns of federal candidates.

Federal law preempted the disclosure requirements for federal candidates shortly after voters adopted the Act. Now, the Act directs that, when federal law requires federal candidates to furnish disclosures to California's Secretary of State, the onus is on the Secretary of State (rather than the candidates) to furnish copies to the county clerks.

We have considered a possible argument that this change impliedly amended section 83105, such that its contributions ban would no longer apply to campaigns for federal elections held in this State. Under this view, when the Legislature amended the Act to remove the requirement that federal candidates submit campaign disclosures to state officials, it also impliedly removed federal elections from the ban on Commissioner contributions. This implied amendment supposedly occurred because one obvious reason for the ban, to maintain Commissioner impartiality in its oversight of federal candidate disclosures, no longer existed. We reject this notion for two reasons.

First, implied amendments are generally disfavored. Second, the Act contains strict limits on amending it, which apply to implied amendments. The limits here would mean that the implied amendment to the statutory ban would have to further the Act's purposes. But amending the statute on Commissioner contributions, so that the ban no longer applies to federal elections held in this State, would not further the Act's purposes. Instead, as explained below, the ban on those contributions still furthers the purposes of the Act.

The Statutory Purpose

The Act directs that it "should be liberally construed to accomplish its purposes." A central purpose of the Act was to create a commission that would vigorously enforce its provisions. In addition to what the Act itself expresses about its goals, the ballot arguments in favor of the measure further reveal the Act's purposes. The ballot arguments state that a "yes" vote will "[e]nforce the law by establishing a tough, nonpolitical commission." They further state: "Rather than leading to unfounded charges or selective enforcement, [the Act] will at last bring full, fair and independent enforcement of the law."

The goal of a "tough, nonpolitical" Commission is furthered by construing section 83105 to ban Commissioners from contributing to campaigns for federal elections held in this State. Because the way the Commission interprets, applies, and enforces the Act may affect those candidates, a ban on Commissioner contributions to them promotes the impartial administration and implementation of the Act. Several concrete examples illustrate this.

To begin with, individuals who remain under the Commission's purview by virtue of a current or past office or candidacy may become federal candidates. In general, the Commission has at least four years to enforce compliance with the Act. Applying the contributions ban to federal elections preserves this statutory safeguard of impartiality toward covered officials and candidates, who may then become federal candidates in California. Otherwise, Commissioners could be enforcing the Act against those candidates while also contributing to their campaigns.

Additionally, at least two provisions of the Act independently illustrate the ongoing relevance of the ban to federal elections held in this State. Government Code section 89519 allows state and local candidates to use their "surplus campaign funds" to support or oppose a federal candidate. The Commission might well be called on to consider whether funds were actually "surplus campaign funds," properly used for that purpose, or properly disclosed. In that scenario, preserving Commissioner impartiality, by prohibiting Commissioners from contributing to federal candidates, would help promote full, fair, and independent enforcement of section 89519.

Similarly, Government Code section 84308 prohibits an officer of certain state and local agencies from directing contributions exceeding $250 to federal candidates from anyone who is a party to a proceeding pending at the agency involving a license, permit, or other entitlement. In overseeing this prohibition, the Commission may find itself directly involved in a matter implicating federal candidates. The goal of impartiality is served by a Commission whose members have not contributed to such candidates.

Another example pertains to the state ballot pamphlet, which the Act intends to be useful to voters. The Act authorizes a candidate for United States Senate to buy pamphlet space for a 250-word statement, but prohibits mentioning opponents. If a question arose relating to this aspect of the pamphlet, the Commission could again find itself involved in a matter involving federal candidates.

As these examples illustrate, applying the ban on Commissioner contributions to federal candidates promotes impartiality and the full, fair, and independent enforcement of the Act by the Commission. The objects sought to be achieved by the Act, like its history, reinforce that the words of the Act mean what they say: the statutory ban on Commissioner contributions applies to candidates in federal elections held in this State.