Judge Shelleyanne Chang on the FPPC

I recommend taking the time to read Judge Shelleyanne Chang's 22-page ruling on candidate-controlled initiative committees. It contains some memorable and salient passages, several of which I will quote here (omitting the citations for better flow):

To be valid, an administrative regulation must be within the scope of the authority conferred by the enabling statute or statutes.  No matter how altruistic its motives, an administrative agency has no discretion to promulgate a regulation that is inconsistent with the governing statutes. In reviewing the validity of a regulation, the court’s function is to inquire into its legality, not its wisdom.

On the constitutionality of Regulation 18530.9, which the FPPC contends limits contributions to candidate-controlled initiative committees:

In light of the aforementioned authorities, the court is easily persuaded that the prevention of candidate corruption, the appearance of corruption, and/or the circumvention of applicable campaign contribution limits are all “sufficiently important” governmental purposes, and has no quarrel with the FPPC’s stated goals.  As a consequence, the court’s analysis at this early stage turns to whether plaintiffs have demonstrated a reasonable probability that Regulation 18530.9 shall be found not “closely drawn” to match these sufficiently important purposes.

On this question, the court’s primary focus is drawn to the extraordinary and presumptive breadth of the regulation’s application in light of the expansive statutory definition of “controlled committee,” and its contrast to the metered definition of “contribution.”  Because of the extremely broad reach of the “controlled committee” definition, and its “contribution presumption,” Regulation 18530.9 seriously threatens to ensnare and limit contributions for issue advocacy that have no appreciable indicia of the evils that the regulation is intended to prevent.  Specifically, Regulation 18530.9 is broad enough that it limits contributions: (1) to an ballot measure committee whose decisions on political issues, but not its expenditures, are “significantly influenced” by a candidate’s agent; (2) which are contributed by people who have never made a contribution to the subject candidate’s campaign(s); (3) which are contributed by people who do not necessarily know the candidate’s vicarious relationship to the committee; and (4) the proceeds of which cannot and will not lawfully be used for the controlling candidate’s campaign, “election-related activities,” the candidate’s expenses of holding office, to expressly advocate on behalf of the candidate, or to confer a substantial or direct personal benefit upon the candidate. It is difficult to comprehend how such contributions could theoretically foster corruption, the appearance of corruption, or the circumvention of applicable campaign contribution limits.  It is likewise difficult to appreciate how limiting such contributions could legitimately advance the important governmental purpose of preventing those three resilient demons of campaign finance and its regulation.

I love that last line.

Here is Judge Chang on the effect of an over-broad regulation on freedom of association:

Furthermore, the vast scope of the term “controlled committee” in this context unreasonably impairs and chills the associational rights of candidates and those directing a committee who would otherwise desire to consult with them.  Such associations are chilled by the justifiable and reasonable apprehension that their mere association for the exchange of political ideas will result in a considerable curtailment, or even termination, of the committee’s ability to amass resources.  Resources which are admittedly essential to the modern political initiative process.  Again, this highly probable and inevitable ramification of the subject regulation cannot conceivably aid in anyway to achieve its laudable goals, which further evinces that the regulation is not “closely drawn” to its purpose.

Judge Chang's ruling is encouraging reading for those of us who view campaign contribution limits as infringements of our right to free speech. While Judge Chang does not take issue those limits per se, she clearly recognizes that giving regulatory agencies like the FPPC to decide what campaign law is and to divine the intent of donors is dangerous.

Reading this opinion is yet more evidence of how arcane and ridiculous campaign finance reforms law are, and how their underlying logic drives advocates of "reform" to make these law ever more incomprehensible and open to unwitting violations.

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