Jon Coupal: Political reform for some but not for all

Over the years, this column has exposed the myriad ways that the California Legislature enacts laws, not for the public benefit, but to cement progressive political power with one-party rule. A lawsuit filed last week in the Sacramento Superior Court illuminates yet another example.

A coalition of business groups is challenging Senate Bill 1439 (Glazer), signed into law last year. The legislation, which took effect on January 1, requires city and county elected officials to recuse themselves from certain decisions that would financially benefit any entity or person that donated over $250 to that official’s campaign in the past year.

Specifically, SB 1439 amends the Political Reform Act of 1974, which prohibits an officer of an agency from accepting, soliciting, or directing a contribution of more than $250 from any party while a proceeding involving a license, permit, or other entitlement for use is pending before the agency. The new law is targeted mostly toward developers and other real estate interests which, rightly or wrongly, are perceived to make use of “pay to play” tactics, especially at the local level.

But prior to the enactment of SB 1439, the term “agency” was defined to exclude those entities whose members are directly elected by the voters. The thinking is that members of local legislative bodies, particularly city councils and county boards of supervisors, are directly accountable to voters, and citizens can either recall or reject for reelection politicians perceived to be unduly influenced by special interests.

SB 1439 removed the exception for local government agencies, thereby subjecting elected officials to the same prohibition as other officials. But despite what may have been good intentions, SB 1439 is flawed and may end up being invalidated.

The legislation’s legal problem is that it may be an impermissible attempt to amend the Political Reform Act without a vote of the People. PRA was an initiative and, as such, may only be amended by a popular vote or by legislation to further the purposes of the Act. Defenders of SB 1439 will argue that the removal of the exemption for agencies whose members are elected by voters is indeed consistent with the overall purposes of the Act.

But how can it be “consistent” with the original Political Reform Act when that law specifically exempted elected officials from this provision?

Moreover, courts are skeptical of arguments that legislative amendments to the PRA “further its purposes.” The Howard Jarvis Taxpayers Association won such a lawsuit in 2019. That dispute began in 2016 when the Legislature passed, and the governor signed, Senate Bill 1107, which purported to amend a part of the PRA that expressly prohibited public funding of political campaigns.

SB 1107 attempted to reverse the ban by permitting public funding of political campaigns under certain circumstances. Because SB 1107 was so clearly contrary to the letter and spirit of the Act, Howard Jarvis Taxpayers Association challenged the 2016 law as an improper legislative amendment of a voter initiative. Taxpayers prevailed in both the trial court and the Court of Appeal.

In addition to the questionable legality of SB 1439, taxpayers have reason to be concerned that the law tilts the playing field by allowing some power players to continue to engage in “pay to play.”

SB 1439 is limited to situations “involving a license, permit, or other entitlement for use,” applying to “business, professional, trade and land use” as well as “all contracts” and “all franchises.” By far the biggest “pay to play” problem in California involves public sector labor unions shoveling boatloads of cash to their preferred candidates.

Leaving no doubt that labor organizations have special protection from this law, SB 1439 defines “license, permit, or other entitlement for use” to include “all contracts,” but then specifically excludes union contracts with the phrase, “other than competitively bid, labor, or personal employment contracts.”

Finally, adding insult to injury, lawmakers made sure to exempt themselves from the provisions of SB 1439, defining “agency” to “not include the courts or any agency in the judicial branch of government, the Legislature, the Board of Equalization, or constitutional officers.”

Examples of California politicians protecting those who protect them are too many to list. Regrettably SB 1439 is just the latest example.

Jon Coupal is president of the Howard Jarvis Taxpayers Association.