Opinion
As Modified Aug. 25, 1989.
Review Granted Dec. 7, 1989.
Previously published at 212 Cal.App.3d 991
Munger, Tolles & Olson, Bradley S. Phillips and Mark H. Epstein, Los Angeles, for petitioner.
Diane M. Griffiths, Kathryn E. Donovan and Scott Hallabrin, for respondent.
Kopp & Di Franco, Quentin L. Kopp, Ross Johnson, Sacramento, Ball, Hunt, Hart, Brown and Baerwitz, Allan E. Tebbetts, Judith F. Burkey, Albert W. Gieseman, Long Beach, Nielsen, Merksamer, Hodgson, Parrinello & Mueller, Vigo G. Nielsen and Louise J. Rosen-Garcia, San Francisco, as amici curiae on behalf of respondent.
CROSKEY, Associate Justice.
On June 7, 1988, the voters of California approved two separate campaign financing reform measures. One, Proposition 73, applies to candidates for all state and local elective offices and the other, Proposition 68, is limited to candidates for legislative office. The Fair Political Practices Commission (the "Commission"), respondent herein, subsequently issued an opinion in which it ruled that a substantial number of the provisions of Proposition 68 could not be enforced because they were invalid as conflicting with Proposition 73 or, if not in conflict, were not severable from the invalid provisions.
In this proceeding, petitioner, Taxpayers to Limit Campaign Spending ("petitioner"), seeks a peremptory writ of mandate ordering the Commission to enforce certain provisions of Proposition 68. As it is our responsibility to reconcile and to give effect to both measures, if at all possible, and because we have concluded that a number of the provisions of Proposition 68 are valid and enforceable, we grant the writ.
Petitioner describes itself as "an association formed for the purpose of sponsoring an initiative measure to reform the election campaign system in the State of California" and "the principal sponsor of Proposition 68."
We recognize that another court has concluded that the provisions of Proposition 68 relating to public funding of legislative campaigns are in irreconcilable conflict with Proposition 73 and may not be enforced or given effect. (Center for Public Interest Law v. Fair Political Practices Commission (1989) 210 Cal.App.3d 1476, 259 Cal.Rptr. 21.) Specifically, that court had before it a petition for a writ seeking to compel the Commission and the Franchise Tax Board to give full force and effect to the following provisions of Proposition 68: (1) the expenditure limitation provisions ( §§ 85400-85405); (2) the income tax checkoff and Campaign Reform Fund provisions ( §§ 85500-85506 and Revenue and Code §§ 18775-18776); and (3) certain related provisions ( §§ 85700, subds. (a) and (c), and 85701). However, none of these provisions are presented to us by the instant petition. We are asked to consider only the validity of (1) certain of the contribution limitations in Proposition 68; (2) a change in the civil and criminal penal provisions; and (3) related "definitions," "findings" and "purposes." Thus, the petition before us is unaffected by the decision in the above cited case.
PROCEDURAL AND FACTUAL BACKGROUND
On June 4, 1974, the voters of California added title 9 to the Government Code by
Proposition 68 amended certain sections of title 9. It also added new sections to title 9, including a chapter 5 entitled the "Campaign Spending Limits Act of 1986." ( § 85100, et seq.) Those portions of Proposition 68 with which we are concerned provide: (1) a prohibition of contributions to a legislator or legislative candidate during years in which his or her name does not appear on an election ballot; (2) limitations on the amount of contributions that may be made to legislative candidates and committees supporting legislative candidates; (3) limitations on the aggregate amount of contributions which may be received by a legislative candidate from non-individuals and the aggregate amount which persons, organizations or small contributor political action committees may contribute to all legislative candidates or committees that contribute to legislative candidates; (4) regulation of the allocation, attribution, aggregation, and return of contributions for purposes of applying the contribution limitations; and (5) an increase in the criminal and civil penalties for violation of the provisions of the Act.
Proposition 73 also added a chapter 5 to title 9 of the Government Code and that chapter 5 also is numbered section 85100 et seq. This other chapter 5 is entitled the "Campaign Contribution Limits Without Taxpayer Financing Amendments to the Political Reform Act." It contains extensive limitations on, and regulation of, the amount, manner and timing of contributions to a candidate as well as contributions to and from political committees. It also contains an explicit provision prohibiting public financing of election campaigns.
Because both propositions have the same statutory numbering system, in this opinion "section 68 -----" and " § 68 -----" refer to sections enacted pursuant to Proposition 68, while "section 73 -----" and " § 73 -----" refer to sections enacted pursuant to Proposition 73.
The full text of Proposition 73's chapter 5 is set out in the Appendix to this opinion.
As the Commission emphasizes in its brief on appeal, the proponents of Proposition 73 were aware of the provisions in Proposition 68 when they drafted Proposition 73, and they "included specific language in Proposition 73 to invalidate specific provisions of Proposition 68."
A good example of Proposition 73's direct attack on Proposition 68 is the matter of partial state funding of legislative election campaigns. Proposition 68 contains provisions, similar to those for presidential election campaigns, whereby taxpayers could designate that up to three dollars of their income taxes to be applied towards election campaign matching funds. ( § 85500 et seq.; Rev. & Tax.Code, §§ 18775-18776.) In contrast, Proposition 73 contains a specific provision which prohibits public officers from expending, and candidates from accepting, public monies for the purpose of seeking elective office. ( § 85300.) As a result, a clear conflict exists, and such public financing has been held to be unenforceable (see fn. 2, ante ).
Proposition 73 received 58% "yes" votes and 42% "no" votes. Proposition 68 received 53% "yes" votes and 47% "no" votes. Article II, section 10, subdivision (b), of the California Constitution provides: "If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail."
Section 83114 provides that "Any person may request the [Commission] to issue an opinion with respect to his duties under [title 9 of the Government Code]." By letter dated August 2, 1988, the California Political Attorneys Association requested the Commission to render an opinion as to which, if any, of the provisions in Proposition 68 will be given effect as law and whether members of the Association and their clients will have any duties to perform pursuant to the provisions of Proposition 68. On November 9, 1988, the Commission Section 83120 provides that "An interested person may seek judicial review of any action of the Commission." Thus, petitioner filed this petition for writ of mandate contending that the Opinion violates article II, section 10 subdivision (b), of the constitution because it invalidates provisions of Proposition 68 which are not in irreconcilable conflict with Proposition 73.
Petitioner also asked for an immediate stay of the portions of the Opinion which had found the contested provisions of Proposition 68 to be unenforceable, pending resolution of the instant matter. We denied such relief on the principal ground that a balancing of the hardships fell on the side of leaving the Commission's Opinion in effect pending our decision. A stay would have contributed to serious confusion as to legal duties of persons subject to the provisions of these two measures. The Commission's Opinion on the other hand, provided workable guidelines for the period this petition was pending.
Because the issues presented by petitioner are of great public importance and should be resolved promptly, we deemed it appropriate to exercise our original jurisdiction to resolve them, and we issued an order requiring the Commission to show cause why we should not grant the relief requested by petitioner. (Cal. Const., art. VI, § 10; Brosnahan v. Brown (1982) 32 Cal.3d 236, 241, 186 Cal.Rptr. 30, 651 P.2d 274; Carlson v. Cory (1983) 139 Cal.App.3d 724, 727, 189 Cal.Rptr. 185.)
CONTENTIONS OF PETITIONER
Petitioner contends that certain provisions of Proposition 68 have survived the passage of Proposition 73 and should be enforced. With respect to those provisions, petitioner argues that they are not irreconcilable with Proposition 73 because (1) Proposition 73 is silent on those matters which they cover and (2) the fundamental purposes of Proposition 73 will be furthered, not subverted, by their enforcement. Petitioner also contends that each of the provisions which it seeks to have enforced is severable from those portions of Proposition 68 which petitioner concedes are invalid in view of Proposition 73's greater voter support.
Petitioner has asked us to require the Commission to enforce the following specific provisions of Proposition 68:
1. Six of the nine "findings and declarations" contained in section 85101, specifically subdivisions (a), (c), (d), (e), (g) and (i);
The relevant portions of section 68:85101 provide:
2. Nine of the thirteen "purposes" of Proposition 68 contained in section 85102,
3. The definitions of (a) "small contributor political action committee" in section 85202, (b) "two-year period" in section 85202, and (c) "organization" in section 85206;
Sections 85202, 85204 and 85206 provide:
4. The prohibition on non-election year contributions, set out in section 85309;
Section 85309 provides:
5. The limitations on aggregate contributions to legislative candidates, set out in sections 85305 (contributions from non-individuals), 85306 (total contributions from persons) and 85307 (total contributions from organizations and small contributor political action committees);
Petitioner concedes that the limitations on individual contributions to legislative candidates contained in sections 85300-85304, inclusive, are "in conflict" with similar provisions in Proposition 73 and are therefore invalid.
Sections 85305-85307 provide:
6. The regulation of the aggregation ( §§ 85312 and 85314), allocation ( § 85317),
7. The imposition of increased criminal and civil penalties for violation of the Act, by amendment of sections 91000 and 91005, respectively.
The Commission argues, and the Opinion which it filed (In Re Bell, supra, 11 FPPC Ops. at pp. 1-2) concluded, that each of the foregoing sections of Proposition 68 is in conflict with express or implied provisions of Proposition 73, or is dependent on provisions of Proposition 68 found to be invalid and thus is not severable from those invalid provisions. DISCUSSION
There appears to be no dispute between the parties that certain other portions of article 3 of Proposition 68 ("Contribution Limitations") are clearly in conflict with Proposition 73 and are therefore invalid and may not be given effect.
As already noted, if provisions in two or more initiatives approved at the same election conflict, the provisions of the measure which receives the highest affirmative vote will prevail. However, under general rules of statutory construction, courts must first seek to harmonize and reconcile statutes which relate to the same subject matter and thereby avoid, if at all possible, an interpretation which would cause one of the statutes to be ignored. (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 547 P.2d 449; Estate of Gibson (1983) 139 Cal.App.3d 733, 736, 189 Cal.Rptr. 201.) This rule applies whether the statutes are enacted by initiative or by the Legislature. (Gibson, supra, at p. 736, 189 Cal.Rptr. 201.)
Thus, just as a later-enacted statute will prevail over an earlier-enacted one only when the two acts are "irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation" (Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 176, 74 P.2d 252) and "only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation]" (In re White (1969) 1 Cal.3d 207, 212, 81 Cal.Rptr. 780, 460 P.2d 980; accord Dew v. Appleberry (1979) 23 Cal.3d 630, 636, 153 Cal.Rptr. 219, 591 P.2d 509; Fuentes v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d at p. 7, 128 Cal.Rptr. 673, 547 P.2d 449), so too the rule set out in article II, section 10, subdivision (b) of the constitution, should be invoked only if the provisions in the initiative measures cannot be harmonized. The courts must seek to give these voter-enacted statutes concurrent operation and effect, maintaining the integrity of both statutes if the two can stand together. (Estate of Gibson, supra, 139 Cal.App.3d at p. 736, 189 Cal.Rptr. 201.)
However, it is not enough to find that a portion of Proposition 68 is valid because it can coexist with a portion of Proposition 73. We must also determine if that portion of Proposition 68 is severable from those portions which are irreconcilable with Proposition 73. If it is severable then it should be enforced. If the valid portions of Proposition 68 are not severable, then the invalid portions taint the constitutional parts and the whole initiative is a nullity. (Santa Barbara Sch. Dist. v. Superior Court (1975) 13 Cal.3d 315, 330, 118 Cal.Rptr. 637, 530 P.2d 605.)
The severability rules are applicable both to initiative measures and to statutes enacted by the Legislature. (Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at p. 330, 118 Cal.Rptr. 637, 530 P.2d 605 et seq.; People's Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 321, 329, 226 Cal.Rptr. 640 et seq.) The general presumption of constitutionality given to statutes, coupled with a severability clause in the enactment "normally In Santa Barbara, the court compiled various tests used by courts to determine whether portions of a statute will be severed from the whole and given effect. (Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at pp. 330-332, 118 Cal.Rptr. 637, 530 P.2d 605.) First, is the language of the statute mechanically severable? Can the valid and invalid portions "be separated by paragraph, sentence, clause, phrase, or even single words"? Can the defect "be cured by excising any word or group of words"? (Santa Barbara, supra, at pp. 330-331, 118 Cal.Rptr. 637, 530 P.2d 605, quoting from In re Blaney, supra, 30 Cal.2d 643, 655, 184 P.2d 892; accord People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 330, 226 Cal.Rptr. 640.) People's Advocate refers to this test as the "grammatical test." (People's Advocate, Inc., supra, at pp. 330-331, 226 Cal.Rptr. 640.) Of course, a court will not reform a statute to save its constitutionality. (Id. fn. 15.)
Proposition 68 contains a severability clause which states: "If any provision of this Act or the application thereof to any person or circumstances is held invalid, the remainder of this Act, to the extent it can be given effect, or the application of those provisions to persons or circumstances other than those as to which it was held invalid, shall not be affected thereby, and to this end, the provisions of this Act are severable."
Second, can the severed sections be applied independently? (People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 331, 226 Cal.Rptr. 640.) Are they complete in themselves? (Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at p. 331, 118 Cal.Rptr. 637, 530 P.2d 605.) People's Advocate refers to this test as the "functional test." (People's Advocate, Inc., supra, 181 Cal.App.3d at p. 332, 226 Cal.Rptr. 640.) "The part to be severed must not be part of a partially invalid but unitary whole. The remaining provisions must stand on their own, unaided by the invalid provisions nor rendered vague by their absence nor inextricably connected to them by policy considerations. They must be capable of separate enforcement." (Ibid.)
Third, would the severed portions have been adopted by the voters if they had foreseen that portions of the initiative measure would be invalidated? (Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at p. 331, 118 Cal.Rptr. 637, 530 P.2d 605; People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 332, 226 Cal.Rptr. 640.) "This test logically requires that the remaining provisions must be viewed from the perspective of the enacting body. [p] Although the initiative process differs from the legislative process in that it does not permit amendments and a collective weighing of the relation of the parts of the enactment, it is nonetheless subject to the severability doctrine. (See Santa Barbara, supra, 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605.) However, the provisions to be severed must be so presented to the electorate in the initiative that their significance may be seen and independently evaluated in the light of the assigned purposes of the enactment. The test is whether it can be said with confidence that the electorate's attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions." (People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at pp. 332-333, 226 Cal.Rptr. 640.) Having set out these rules, we now examine those specific provisions of Proposition 68 which the Commission determined to be ineffective (under article II, section 10, subdivision (b)), and which are the subject of the pending petition, to determine (1) whether they can be given concurrent operation and effect with Proposition 73 and, if so, (2) whether they are severable from the invalid portions of Proposition 68.
We concur with the view expressed by the Commission in its Opinion when it noted that this third test is the most difficult to apply. It necessarily involves subjective analysis and conjecture as to just what was in the voters' minds.
In pursuing this "provision-by-provision" method of analysis, we necessarily reject a "thematic" approach. Such an approach would result in a rejection of Proposition 68 in its entirety on the ground that each of these measures sought to enact a comprehensive campaign finance reform scheme and therefore only one could survive. As the Commission similarly recognized, an analysis of the individual provisions of Proposition 68 is supported both by the constitution (art. II, sec. 10, subd. (b), which refers to conflicting "provisions") and existing case law (Estate of Gibson, supra, 139 Cal.App.3d at p. 736, 189 Cal.Rptr. 201).
The Commission stated in its Opinion:
We emphasize at the outset that we agree with petitioner that the need to harmonize statutes applies with special force when the voters simultaneously pass two initiatives. The voters are given the text of both initiatives in their voter materials, as well as a summary and analysis of the measures, and arguments for and against each. With their reception of these materials, a majority of the voters said they approved of both Proposition 68 and Proposition 73. It is logical to infer that they intended that both initiatives take effect to the greatest extent possible. The voters were not choosing between these two measures, nor did they intend that one initiative effect a near wholesale repeal of the other.
However, we also note that our analysis must take into account two significant factors which pervasively impact the question of irreconcilability, as well as that of severability. First, unlike two new initiative enactments which could be judged on their own, standing alone, these two measures amend the pre-existing Act. Thus, neither writes on a clean slate. As a result, we must assume that the drafters of each measure were aware of and took into account certain provisions, including definitions, contained in the Act. Second, Proposition 68 applies only to state legislative candidates and only with respect to their campaigns for state legislative office, while Proposition 73 applies across the board to all elective offices whether state or local, whether legislative, executive or judicial.
From our review of (1) the provisions of Proposition 68 (including some determined to be invalid by reason of conflict with Proposition 73, such as § 68:85315) and (2) the ballot materials and arguments supplied to the voters, it is clear that the measure was never intended to regulate anything but campaigns for state legislative office.
As we seek to give these two measures concurrent effect and operation, we examine in turn each of the four major provisions cited by petitioner which the Commission has refused to enforce: (1) the prohibition of non-election year contributions; (2) the limitations on aggregate or total contributions; (3) the regulation of the aggregation, allocation, attribution and return of contributions; and (4) the imposition of increased criminal and civil penalties. The tangential issue of the continued viability 1. The "Non-Election Year" Contributions Provision in Proposition 68
Section 85309, subdivision (a), of Proposition 68 prohibits any legislative candidate, legislator, or controlled committee of either from accepting contributions in any year other than a year in which the legislative candidate or legislator is listed on the ballot as a candidate for legislative office. Section 85309, subdivision (b), of Proposition 68 prohibits legislative caucus committees and political party committees, which support or oppose legislative candidates, from accepting contributions in an odd-numbered (i.e., non-election) year.
Proposition 73, on the other hand, does not directly address the issue of off-year contributions. It does, however, contain limitations on the amount of money that persons, political committees and broad based political committees can contribute "in any fiscal year," i.e., from July 1 of one calendar year through June 30 of the following calendar year. ( §§ 85102, subd. (a); 85301-85303.) Each fiscal year would necessarily include six months of a non-election year; and, of course, each election year would be comprised of six months of each of two different fiscal years.
If Proposition 68's non-election year provision is enforced, its combined effect with Proposition 73's fiscal year limitations is that a contributor may make, and a state legislative candidate may receive, up to the maximum "fiscal year" contributions during each six months of an election year--the last six months of one fiscal year (corresponding to the primary election period) and the first six months of the next fiscal year (corresponding to the general election period)--but a state legislative candidate may not accept any contributions during any calendar year in which his or her name is not on the ballot "as a candidate for legislative office" (and the committees described in § 85309, subd. (b), may not accept "contributions in an odd-numbered year").
The result for Assembly candidates is that they may accept the maximum contributions provided by Proposition 73 during each and every fiscal year (so long as such contributions are made in the even-year half of the fiscal year), because they stand for election every other year. However, for Senate candidates, the off-year prohibition means that they may not accept contributions during any part of the two fiscal years which do not overlap a calendar year during which they stand for election.
The Commission argues that the off-year provision in Proposition 68 cannot be harmonized with Proposition 73's fiscal year contribution limitations because it reduces the amount of money which a Senatorial candidate may receive. For example, without the non-election year prohibition, a candidate could receive a total of $4,000 from one person during the four-year period between Senatorial election years. With such provision the same candidate could receive a total of only $2,000 from that person.
However, this more restrictive treatment does not equate with invalidity. Certainly, no constitutional reason exists why the Legislature, or the people, may not enact more restrictive provisions which will apply only to state legislative candidates. They are similarly free to restrict fundraising activities by a legislative candidate to only those years when he or she is on the ballot. This restriction may result in less fundraising opportunities for candidates for an office with the greater term, but such "different" treatment is neither unequal nor unfair in a constitutional sense. It is a limitation which may legitimately be imposed.
It would appear that some recognition of a different need for senatorial candidates is recognized in the higher limitation allowed in section 85305 (discussed, infra ). However, in the sense that the people want their legislators to limit their fundraising activities to election years, all legislative candidates are actually being treated equally.
The unstated premise for the argument that Proposition 73's fiscal year scheme First, the language of sections 85301-85303, as well as the summary of Proposition 73 by the legislative analyst and the arguments in favor of Proposition 73 printed in the voter materials, all show that the focus of those sections was to limit contributions, not to guarantee rights to make and receive yearly maximum amounts.
Second, the Commission in its brief states that the proponents of Proposition 73 adopted a "fiscal year" scheme so that they could provide for separate contribution limits for the primary and the general elections. The non-election year prohibitions in Proposition 68 actually further that primary/general election arrangement. With those prohibitions, Senatorial candidates can receive their maximum amounts for the primary election in the latter half of one fiscal year and their maximum amounts for the general election in the first half of the next fiscal year. Without the off-year provisions, the Senatorial candidates could receive three times as much money before the primary as they do before the general election.
Third, as is apparent from Proposition 73's specific prohibition against the partial public financing of election campaigns, where the drafters of that proposition intended to preempt a particular provision in Proposition 68, they did so expressly. (See § 85300.) In addition, the language in section 85303, subdivision (c), shows that the drafters knew how to create an entitlement. Thus, had they wished to create the entitlements which the Commission now contends flow from sections 85301, 85302 and 85303, subdivisions (a) and (b), we believe they would have expressly done so. For example, section 85301 could have been drafted to provide that every candidate shall be permitted to receive up to but not more than $1,000 every fiscal year from each person.
Fourth, our duty is to seek to give the propositions concurrent operation and effect and to avoid, if at all possible, an interpretation of Proposition 73 which would cause portions of Proposition 68 to be ignored. (Fuentes v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d at p. 7, 128 Cal.Rptr. 673, 547 P.2d 449; Estate of Gibson, supra, 139 Cal.App.3d at p. 736, 189 Cal.Rptr. 201.) Although initially it may be administratively complex to integrate Proposition 68's non-election year provisions with Proposition 73's fiscal year limitation provisions, those provisions are not clearly repugnant to the fiscal year limitations. (Penziner v. West American Finance Co., supra, 10 Cal.2d at p. 176, 74 P.2d 252.) We therefore hold that they are reconcilable with Proposition 73 and can be given concurrent effect.
We also hold that those provisions can be severed from the invalid portions of Proposition 68. First, the off-year provisions can be mechanically severed because they are a discrete section of Proposition 68, grammatically complete and distinct from the other sections. (People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 331, 226 Cal.Rptr. 640.) Secondly, they can be applied independently of the invalid provisions in Proposition 68; they do not depend on any invalid portion for their application. (Santa Barbara Sch. Dist. v. Superior Court, supra, 13 Cal.3d at p. 331, 118 Cal.Rptr. 637, 530 P.2d 605; People's Advocate, Inc., supra, 181 Cal.App.3d at pp. 331-332, 226 Cal.Rptr. 640.)
Finally, we think it clear that the voters would have adopted Proposition 68 with its non-election year prohibitions even if it had not contained the provisions for public financing of election campaigns and the Proposition 68 ( § 85101, subds. (f) and (g)) includes as three of its preliminary findings, (1) that legislators are spending more time on fund raising and less time on the public's business even in off-election years, (2) that this off-year fund raising is distracting them from legislative matters, and (3) that such fund raising gives incumbents an unfair advantage over potential challengers. Proposition 68 ( § 85102, subds. (h), (i) and (j)) includes as some of its purposes the elimination of off-year fundraising and the reduction of excessive fund raising by incumbents, which would thereby allow legislators more time for the public's business and encourage competition for elective offices. Further, both the legislative analyst's summary and the arguments in favor of Proposition 68 contain a separate "bullet" point regarding the non-election year provisions.
It has been argued that the public financing provisions (which have now been held to be invalid--see fn. 2, ante ) were the "trade-off" for, and an integral part of, Proposition 68's non-election year prohibitions. If that is so, it is not apparent to us from any of the ballot materials which we have examined. Indeed, the express terms of articles 4 and 5 of chapter 5 of Proposition 68 make it clear that the public financing provisions of that proposition were tied to expenditure limitations. They were not directly related to, nor dependent upon, the contribution limitation provisions in article 3, including the non-election year prohibitions, which are the subject of the instant petition. Given this, and the very specific expression of public concern about legislative fundraising activities (see fn. 8, ante ), it is reasonable to conclude that the voters would have desired the off-year limitation (as well as the other contribution limitations in article 3 which we hold to be valid, see infra ) even without public financing.
We therefore conclude that the voters' attention was sufficiently drawn to the issue of non-election year fund raising to identify it as worthy of independent consideration and we further conclude that had they been given that issue separately to vote on, a majority of the voters would have approved of the off-year provisions. (People's Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 333, 226 Cal.Rptr. 640.)
2. The Aggregate Contribution Limitations in Proposition 68
Proposition 68 contains two sets of contribution limitations. The first set (sections 85300-85304) relates to contributions to an individual candidate or committee by a particular person, committee or organization. In contrast, section 85305 contains limitations on the total amount of money that a senatorial or assembly candidate may receive from all non-individuals, except political parties and legislative caucuses, (Senate--$75,000 and Assembly--$50,000); and sections 85306-85307 contain limitations on the total combined amount that a person, organization or committee (other than a political party or legislative caucus) may give to all candidates and their supporting committees in a two-year period. Proposition 73 does not contain express aggregate contribution limitations; nor does it expressly provide that there shall be none.
Proposition 73 has similar limitations and petitioner concedes that the individual contribution limits of sections 85300-85304 are preempted by Proposition 73. (See fn. 15, ante ).
a. The Senatorial and Assembly Candidate Limitations
The Commission's argument against Proposition 68's aggregate contribution limits is that section 85305 treats senatorial and assembly candidates different from other candidates with respect to the amount of contributions they can receive from non-individuals, whereas Proposition 73 treats all candidates alike, except where a local agency has contribution limits that are more restrictive than those contained in Proposition 73 ( § 85101, subd. (b)). The Commission contends this distinction is sufficient First, section 85305 (as well as §§ 85306-85307) simply adds additional requirements to California's scheme for managing political campaigns of state legislative candidates. "Additional provisions" do not necessarily equate to "invalid provisions." If they did, it would not be possible for two propositions ever to be reconciled and harmonized. We must not forget that the voters were not choosing between these two propositions. They approved them both.
Section 85305 merely adds requirements to the Act that Proposition 73 does not consider. The Commission's conclusion that Proposition 73 was "intended" to apply equally to all candidates and not to single out specific elective offices for specific contribution limitations does not convince us that section 85305 is unenforceable. That conclusion really does nothing more than describe what Proposition 73 does not do. It says nothing about the viability of Proposition 68's attempt to deal with the issue.
To begin with, we do not believe that one can say for sure what Proposition 73 intended unless Proposition 73 itself expressly states its intentions, as it did with respect to public financing of elections. Thus, we do not deal in unexpressed "intentions." Our mandate is to reconcile, harmonize and give effect to the additional provisions in Proposition 68 unless they are "clearly repugnant, and so inconsistent [with Proposition 73] that the two cannot have concurrent operation." (Penziner v. West American Finance Co., supra, 10 Cal.2d at p. 176, 74 P.2d 252, emphasis added.)
Further, assuming arguendo that Proposition 73 was intended to apply equally to all candidates, section 85305 does not prevent this from happening; that is, all of Proposition 73's provisions can still apply equally to all candidates. Merely adding additional requirements to campaign financing for legislative candidates does not prevent an equal application of the provisions in Proposition 73. If the drafters of Proposition 73 had wished to avoid the simultaneous operation of the provisions in Proposition 68 which impose additional limitations upon state legislative candidates they could have and should have expressly so stated.
The very presence in Proposition 73 of an exception for additional local restrictions ( § 85101) suggests an affirmative willingness to tolerate additional and more restrictive limitations for some but less than all candidates.
As we have already emphasized in our discussion of Proposition 68's non-election year prohibition, there is no constitutional reason why more burdensome campaign financing limitations cannot be imposed on legislative candidates. Indeed, one does not need to look beyond the express findings set out in Proposition 68 (see § 85101, fn. 8, ante ) to understand that the voters may well have believed that such additional and more burdensome restraints are fully justified.
The second reason for our rejection of the Commission's "unequal treatment" argument is that it depends upon the unstated claim of "entitlement." It is clear that a conflict between Proposition 73 and section 85305 only exists if section 85301 and subdivisions (a) and (b) of section 85303 are construed so as to (1) entitle candidates (for whatever office) to receive contributions from an unlimited number of non-individuals, and (2) entitle non-individuals to make contributions to unlimited numbers of senatorial and assembly candidates.
As discussed above in our analysis regarding Proposition 68's non-election year prohibitions, we do not perceive that these provisions (or those in § 85302) constitute such entitlements. They are merely limitations. Because Proposition 73 does not, in our view, provide for such entitlements to either candidates or contributors, section 85305 is not clearly repugnant to Proposition 73. b. The Aggregate Limits on Contributions from Persons, Organizations and Committees
Thus, we disagree with the Commission's argument that Proposition 73 does not have to expressly address aggregate limits, in order for an irreconcilable conflict to exist, because it "impliedly negates them by flatly stating how much a candidate can receive in contributions during a defined period of time." That argument is based entirely upon the unstated and unwarranted assumption that such "entitlements" exist.
Next, the Commission addresses the aggregate limitations in section 85306 (which prohibits a person from making to legislative candidates or their supporting committees contributions which aggregate to more than $25,000 in a two-year period), and section 85307 (which prohibits organizations and small contributor political action committees from making to legislative candidates, or their supporting committees, contributions which aggregate to more than $200,000 in a two-year period). The Commission stresses that the contribution limits set out in sections 85301-85303 are based on fiscal years rather than on a two-year period, and then contends that this difference creates an irreconcilable conflict between sections 85306-85307 and sections 85301-85303.
Section 85204 defines "two-year period" as "the period commencing with January 1 of an odd-numbered year and ending with December 31 of an even-numbered year."
The Commission cites, as an example of this conflict, the case of a person who wishes to contribute $1,000 to each of 15 legislative candidates from July 1, 1991, through June 30, 1992, and again from July 1, 1992, through June 30, 1993. This would be a total of $30,000. As the Commission points out, if this $30,000 were contributed between July 1, 1991, and December 31, 1992, the contributions would be proper under Proposition 73 but improper under section 85306 because they would exceed that section's aggregate limit of $25,000 for the 1991-1992 two-year period.
Once again, the Commission's argument is valid only if section 85301 is construed to entitle the hypothetical contributor to make contributions to as many legislative candidates as he or she chooses. If, as we hold, section 85301 merely sets out limits on the amounts which a person can contribute to a particular candidate rather than giving the contributor a statutory right or entitlement, then section 85306 can operate concurrently with section 85301. The same reasoning applies to section 85307 in juxtaposition with section 85303, subdivisions (a) and (b).
The Commission also argues that sections 85306-85307 conflict with section 85303, subdivision (c). The aggregate limits in sections 85306-85307 apply not only to contributions made to legislative candidates but also to contributions made to committees supporting legislative candidates. Section 85303, subdivision (c) permits unlimited financial support to political committees and broad based political committees provided that such support "is used for purposes other than making contributions directly to candidates for elective office."
We do not believe that this provision in section 85303, subdivision (c) for restricted, but unlimited, financial support to political committees and broad based political committees presents an irreconcilable conflict with sections 85306-85307. Indeed, there is no reason whatever why those sections can not exist side-by-side.
As read together, these sections would allow contributors to make contributions in unlimited amounts to political committees and broad based political committees, provided such support was used for purposes other than making contributions directly to candidates for elective offices. Contributors could also make certain limited contribution to political committees and broad based political committees, all of which could be used for making contributions directly to state legislative candidates. Under section 85302 they could make contributions of up to $2,500; and under Proposition 68, they could give, to all state legislative candidates, an aggregate of $25,000 in a two-year period ( § 85306) or, if the contributor is an organization or committee, an aggregate of $200,000 ( § 85307).
Finally, the Commission argues that "the difference in the terminology and requirements between the aggregate limits of Proposition 68 and the general limits of Proposition 73 make simultaneous operation We cannot void sections 85305-85307 on the Commission's doomsday assertion that the administration and enforcement of those sections will be too complicated or difficult. No attempt has yet been made by the Commission to draft and adopt regulations which will give effect to the will of the California voters.
Objections to Proposition 68 which are founded upon the administrative difficulties that may be created by the special treatment which must be given to contributions to state legislative candidates go to the issue of the wisdom of the measure, not its constitutionality. That Proposition 68 is cumbersome and complex and will be difficult to administer is a complaint often raised with respect to initiative measures which are enacted "as is" without the benefit of due legislative consideration, review and amendment.
However, we must never lose sight of the fact that the voters passed both of these measures and intended that both have effect to the extent that it is possible; not convenient or easy, but possible. We can only reject those provisions of Proposition 68 which are clearly repugnant to Proposition 73.
It must also be remembered that Proposition 73 was drafted after, and in direct response to, Proposition 68 and its drafters had both the incentive and the opportunity to avoid the administrative difficulties which the Commission now finds to be so onerous.
We also conclude that Proposition 68's provisions for aggregate contribution limits can be severed from the invalid portions of Proposition 68. Sections 85305-85307 are discrete sections of Proposition 68, grammatically complete and distinct from the other sections and therefore can be mechanically severed. They also can be applied independently of other provisions of Proposition 68 which have been found (or conceded to be) invalid, and do not depend on any of the invalid portions of the measure for their application.
The rationale behind the aggregate contribution limitations (dilution of the influence of wealthy individuals, organizations and political action committees on legislative campaigns) was clearly presented to the electorate in Proposition 68's findings and declarations. They expressly state that although contributions to political campaigns are a legitimate way to participate in our country's political process, "the financial strength of certain individuals or organizations should not permit them to exercise a disproportionate or controlling influence on the election of legislative candidates." ( § 85101, subd. (a).)
The findings also emphasize that legislative candidates are receiving less money in small contributions and more in large contributions, that "The average legislative candidate now raises over 90% of his or her campaign contributions from sources outside his or her own district," and that this causes concern that said candidates "are less interested in the problems of their own constituents than the problems of wealthier statewide contributors." ( § 85101, subds. (d) and (e).)
Further, Proposition 68 declares that its purposes include insuring that all individuals and interest groups have an equal opportunity to participate in the legislative process, increasing the importance of smaller contributions and in-district contributions, and reducing the influence of large contributors who have a specific financial stake in matters before the Legislature. ( § 85102, subds. (a), (b), (f) and (g).) In addition, the arguments presented to the voters in favor of Proposition 68 and against Proposition 73 also focused on the problems posed by "big money" contributors. Thus, the voters' attention was directly focused on the problems which sections 85305-85307 were drafted to alleviate; and even though the whole of Proposition 68's contribution limitation plan may not be fulfilled, we believe, based upon the unequivocal findings regarding the perceived evils which these sections were clearly designed to address, that the voters would have approved of these aggregate contribution limitations had they stood alone on the ballot.
3. The Provisions in Proposition 68 Regulating Contributor Aggregation, and the Allocation, Attribution and Return of Contributions
a. Contributor Aggregation
To avoid circumvention of its individual and aggregate contribution limitations ( §§ 85300-85307, of which we have found §§ 85305-85307 to be enforceable), the drafters of Proposition 68 also included sections 85312 and 85314. These sections set out certain circumstances under which the contributions of two or more nominally separate persons or entities will be aggregated and treated as being contributions from a single individual or entity for purposes of applying the aggregate contribution limitations in sections 85300-85307. Proposition 73 does not have similar provisions for aggregating contributors; more significantly, it does not expressly prohibit such aggregation.
The Commission argues that Proposition 73's contribution limitation scheme is "complete unto itself" and therefore sections 85312 and 85314 conflict with it. This argument facially posits that the drafters of Proposition 73 put into it everything that was necessary and no additions to the law of campaign financing are appropriate. This position is a variation of the Commission's apparent philosophy that "additional provisions are automatically invalid." This approach, of course, is at odds with the law which directs that effect should be given to both propositions if possible. As we have already explained, additional provisions or restrictions do not equate to invalid ones.
(1) Section 85312
Section 85312, subdivision (a), states that where the contributions or expenditure activity of a person, organization or small contributor political action committee is financed, maintained or controlled by certain entities, then all such contributions or expenditure activity shall be "considered" as having been made by a single person, organization or committee.
In addition, section 85312, subdivision (b), provides that in certain circumstances, two or more entities shall be "treated " as "one person" (e.g., when the entities seeking to make political contributions share two or more officers or are owned or controlled by the same majority shareholder or shareholders). Subdivision (c) of section 85312 states the circumstances under which an individual and a general partnership or an individual and a corporation will be treated as one person.
The Commission argues that a conflict with Proposition 73 is thereby created because Proposition 73 has its own way of aggregating contributors (i.e., § 85102, subds. (c) & (d), which defines "political committee" and "broad based political committee" in terms of "persons" who "act in concert ") as well as its own way of not aggregating them. Section 85102, subd. (b), defines "person" as an individual, a firm, a partnership, a corporation, etc., and, (unlike the definition of "person" in the Act [ § 82047] ) , does not include, as a "person," a group of individuals, firms, partnerships, corporations, etc., acting in concert.
Government Code section 82047 provides:
Stated another way, the Commission reasons that a conflict exists because section 85312, subdivisions (a), (b) and (c), attempts to treat entities acting in concert as a single person, whereas Proposition 73 does not include entities acting in concert in its While it is true that Proposition 73 has effectively amended the Act's definition of "person" (at least as that term is used in chapter 5 of title 9), it does not follow that Proposition 68's special aggregation language cannot also be given effect. Clearly, Proposition 73's definition of "person" applies to Proposition 68's use of that term. However, section 85312 does not attempt to impose a separate definition. It simply states that under certain very specific circumstances, arising in the context of the enforcement of limitations on contributions to legislative candidates, multiple persons or entities will be "considered" or "treated" as a single person or entity.
Such language implicates neither the definition of the term "person" set out in section 85101, subdivision (b) nor Proposition 73's overall scheme regarding joint action. It simply imposes special rules designed to prevent evasion of the relevant sections of Proposition 68. This is, after all, nothing more than the statutory articulation of rules similar to those which the Commission itself has already imposed administratively in the discharge of its responsibilities to enforce the Act. (See, e.g., In re Lumsdon, 2 FPPC Ops. 140 (1976); In re Kahn 2 FPPC Ops. 151 (1976).) Certainly, there is no need for the language of section 85312 to be given any broader meaning than is reasonably required to prevent evasion of the specific limitations in sections 85305-85307. As narrowly so construed, there is no conflict with Proposition 73.
This conclusion, however, has one caveat. Section 85312 begins: "For purposes of the contribution limitations in Sections 85300-85307, inclusive, and Section 85310, the following shall apply: ..." Because this introductory language makes express reference to provisions in Proposition 68 which are admittedly invalid, the words "in Sections 85300-85307, inclusive, and Section 85310" have to be severed from the remainder of section 85312.
A portion of subdivision (d) of section 85312 must also be excised. Under section 85102, subdivisions (c) and (d), a political committee and a broad based political committee are committees of persons who act in concert. Under section 85102, subdivision (b), "person" includes a committee. Therefore, Proposition 73 permits committees to act in concert. Thus, the provision in section 85312, subdivision (d) which forbids one committee to act in concert with, or to solicit or make contributions on behalf of, another committee is unenforceable. In order to save the balance of the subdivision, we must delete this provision. Deletion of these two portions of section 85312, subdivisions (a) and (d), meets the grammatical test for severability, severing as it does the invalid language from the other parts of the section. The functional test is also met, as the remaining portion of section 85312 can stand on its own; and, since deletion of this particular conflicting language means that section 85312 can be given effect, a result we believe the voters would have wanted, the third part of the severability test is met.
"Committee" is a term which is not defined by either Proposition 73 or Proposition 68. However, it is defined by the Act. Government Code section 82013 provides:
The second sentence of section 85312, subdivision (d) can be easily deleted without impacting the balance of the subdivision. That sentence reads: "No such committee shall act in concert with, or solicit or make contributions on behalf of, any other committee."
However, we emphasize that the provisions of this section can apply only to the contribution limitations contained in Proposition 68 which we have found to be valid, that is sections 85305-85307. The voters did not approve such restrictions for any other contribution limitations, including those in Proposition 73. By virtue of the express language used in section 85312, it was clearly intended to apply only to the contribution limitations in nine specified sections of Proposition 68, only three of which now remain.
(2) Section 85314
Section 85314, subdivision (a), provides that contributions by a husband and wife are to be treated as separate contributions and will not be aggregated. As the Commission has conceded, there is no conflict whatever with Proposition 73. That proposition has no provisions regarding the treatment of contributions by members of the same immediate family.
However, subsection (b) of section 85314 provides that "Contributions by children under 18 shall be treated as contributions by their parents and attributed proportionately to each parent (one-half to each parent or the total amount to a single custodial parent)." The Commission argues that subdivision (b) of section 85314 conflicts with sections 85301-85302 and also possibly conflicts with section 85303. We disagree.
The Commission notes that under section 85314, subdivision (b), a parent and a minor child may together contribute no more than a total of $1,000 to a legislative candidate even if they act independently. By contrast, argues the Commission, section 85301 provides that the parent and minor child may each contribute, if they act independently, up to the sum of $1,000. If they qualify as a "committee" and act in concert, so as to constitute a "political committee" (under section 85102, subd. (c)), then together they can give $2,500. If each of the parents and a minor child all make a contribution, then under section 85314, subdivision (b) they could give no more than a total of $2,000; but under section 85301, they could, if acting independently, give a total of $3,000 or, if acting in concert (as a political committee), give a maximum of $2,500. Thus, the Commission claims there are differing results under these measures and an irreconcilable conflict exists.
This, however, is the same argument which we have already rejected in our discussion of the non-election year prohibition ( § 85309) and the aggregate limitations (§ § 85305-85307). The Commission's point can only be sustained if we were to conclude that every individual is entitled to give up to the maximum permitted by sections 85301-85302. As we have repeatedly stated, those sections impose limitations upon political contributions, they do not create statutory rights. With respect to contributions made by individuals to state legislative candidates, there is nothing in Proposition 73 which under all circumstances prevents treating a parent and minor child as a single person. We also conclude that sections 85312 and 85314 can be severed from the unenforceable portions of Proposition 68. They are mechanically severable because they are grammatically complete and distinct sections. Moreover, sections 85312 and 85314 are complete in themselves and they are capable of independent application. However, as we have construed the specific and focused intent of the voters, section 85312 will apply only to sections 85305-85307, not to the individual contribution limitations in Proposition 73. Section 85314, subdivision (b), on the other hand, will apply to the contribution limitations imposed on state legislative candidates by both Proposition 73 and Proposition 68.
As petitioner notes, in those very limited circumstances where a parent and minor child do qualify as a "committee" under section 82013 (see fn. 28, ante ) then together they might well be considered a "person" as that term is defined by section 85102, subdivision (b). Petitioner concedes that where a parent and minor child engage in conduct which qualifies them as a "political committee" or a "broad based political committee" under section 85102, subdivisions (c) and (d), then clearly the contribution limitations of Proposition 73 would control and section 85314, subdivision (b), would have no impact. It is where the parent and minor child do not qualify as a "committee" that section 85314, subdivision (b), will operate, in state legislative races, to treat them as a single person and thereby prevent evasion of the contribution limitations of both Proposition 73 and Proposition 68.
We note here, for the sake of completeness, that section 85314, subdivision (a) (requiring that each spouse be treated as a separate person) would apply to Proposition 73 as well. It merely prohibits an aggregation and in no way conflicts with Proposition 73. It simply means that, under either measure, the marital status of two individual contributors will have no impact one way or the other.
Additionally, we believe that the voters would have approved of sections 85312 and 85314 as valuable tools in limiting the amount of contributions that wealthy individuals and entities can make to state legislative candidates and thereby preventing evasion of the contribution limitation provisions. In this regard, we adopt our discussion regarding the third element of the severability test as we applied it to sections 85305-85307, ante.
b. Allocation of Contributions
The Time Period Provisions in Proposition 68
Petitioner also argues that section 85317 should be given effect. We agree. This section 85317 specifies how contributions should be allocated among primary, general, special and special runoff elections. These are not distinctions that are particularly relevant to Proposition 73's "fiscal year" scheme. However, because section 85305 limits contributions to legislative candidates from non-individuals on a per-election basis, the general definitional effect of section 85317 must be given effect as well. It is inextricably related to section 85305 and must be valid and enforceable to the same extent.
c. The Attribution of Loans Under Proposition 68
Each of Proposition 73's provisions for contribution limitations ( §§ 85301-85303) apply to both contributions and loans. Proposition 68's limitations on aggregate contributions refer only to contributions. However, section 85313, subdivision (a) provides that "A loan shall be considered a contribution from the maker and the guarantor of the loan and shall be subject to the contribution limitations of this chapter." (Emphasis added.) Subdivision (b) of section 85313 requires that loans be evidenced by a written agreement which is filed with the candidate's or the candidate's committee's campaign statement.
Petitioner concedes that subdivisions (c) and (d) of section 85313, regarding extensions of credit and commercial loans, are preempted by section 85307.
There is no inconsistency here. Indeed, there is considerable compatibility. The overall effect in both Proposition 73 and Proposition 68 is to insure that an unregulated political contribution can not be disguised as a loan. This is also the general tenor of the Act's definition of the term "contribution." (Gov.Code, § 82015.) All that is added is the requirement, in state These requirements can be easily imposed and administered, and can be severed from the invalid portions of Proposition 68. The valid portions of section 85313 are easily separated from the invalid portions and are independently applicable. We conclude that the voters would have desired these additional restrictions even in the absence of the commercial lender rules (in subdivisions (c) and (d)). Again, we refer to our extensive discussion of the severance issue in connection with sections 85305-85307.
d. Proposition 68's Provisions for Returning Contributions
Section 85311 states: "A contribution shall not be considered to be received if it is not negotiated, deposited, or utilized, and in addition it is returned to the donor within fourteen (14) days of receipt." Proposition 73 does not address the return of contributions.
The Commission argues that Proposition 73 intended (by its silence on the matter) to have a corresponding section of the Act continue to apply and, therefore, giving effect to section 85311 would produce a conflict with this silent intent. Again, we reject this reasoning. We view this section as the imposition of a stricter contribution return burden which will apply only to state legislative candidates. Contributions made to such candidates must now be returned more promptly to avoid being counted.
Section 84211, subdivision (q) of the Act also provides when contributions will not be deemed accepted; however, it allows substantially more time for returning the contribution to the donor.
The Commission also argues that section 85311 "is not severable from the other contribution limitation provisions of Proposition 68 which are in conflict with Proposition 73." However, the Commission does not state which are the unenforceable contribution limitation provisions of Proposition 68 from which section 85311 cannot be severed or why such severance cannot be accomplished.
Proposition 68's provisions for returning contributions are mechanically and functionally severable from the invalid portions of the Proposition since they are in a distinct section and can easily be applied independently of the invalid portions. Although the return provisions were not addressed by the legislative analyst or the arguments for or against Proposition 68, their significance is readily ascertainable. A provision which more strictly regulates the return of contributions is a necessary part of an initiative which seeks to limit the amount of money a candidate can accept. As we have found valid three very important contribution limitation provisions, we believe the voters, for all the reasons set forth in our discussion of sections 85305-85307, would have adopted section 85311 even if the invalid portions of Proposition 68 were not presented for their approval.
4. The Provisions for Civil and Criminal Penalties in Proposition 68
Proposition 68 contains amendments to three of the existing enforcement sections of the Act, while Proposition 73 contains none.
Section 91000 of the Act provides that a person who knowingly or willfully violates the Act is guilty of a misdemeanor. Proposition 68 amends section 91000 by (1) deleting the "knowingly or willfully" requirement, and (2) providing that violations of the provisions of "chapter 5 of this title" will be punishable "by imprisonment in a state prison or in a county jail for a period not exceeding one year." The effect of this amendment is to make violations of chapter 5 of title 9 punishable as a felony or a misdemeanor. Proposition 68 provides that violations of other portions of title 9 will still be punishable only as a misdemeanor.
Proposition 68 amends the civil penalties in section 91005 of the Act by (1) increasing the potential liability (from $500 to $1,000)
The Commission does not contend that the criminal and civil penalty amendments conflict with Proposition 73. Rather, it asserts that they are not severable from the invalid portions of Proposition 68. First, the Commission argues that since it has found most of Proposition 68 to be invalid, then the new penalty provisions have very few sections to which they can apply. The Commission contends it is not logical to maintain the new penalty provisions when most of the sections to which they are tied are invalid. It also argues that Proposition 68's amendments to sections 91000 and 91005 cannot be severed from the invalid portions of Proposition 68 because it is not reasonable to believe that the voters could have sorted out the valid from the invalid portions of the proposition (in the event Proposition 73 superseded Proposition 68), and determined for themselves which portions of Proposition 68 would be covered by the amendments to the enforcement provisions of the Act.
With respect to the change in section 91000's criminal provisions, we believe these arguments must fail for two reasons. First, we have held that a significant part the provisions of Proposition 68 which are at issue here are valid. Second, the amendment to section 91000 says that any violation of "Chapter 5" is punishable. Therefore, it is wrong to assume that the voters would have voted new penalties for some of the provisions in chapter 5 but not for others.
Amicus curiae Charles Bell, Jr. and Lance Olson (of the California Political Attorneys Association, the group which requested the Opinion from the Commission) argue that since Proposition 68 contains provisions for public financing of campaigns, the people who voted for the proposition may have approved of the amendments to section 91000 because they believed that harsher penalties were needed to prevent embezzlement of public funds by people who would submit false claims for Proposition 68's matching funds. That argument requires us to engage in gross speculation, which we can not do. Since Proposition 68's amendment to section 91000 says that any violation would be punishable by the new penalties, it is more reasonable to believe that the voters intended the new penalties to apply to all such violations.
Indeed, what the voters have done is increase the penalties for any violation of the campaign financing reforms which they have approved, whether those reforms are found in Proposition 68 or Proposition 73. Given the language of the amendment to section 91000, there is no reason to conclude that the voters intended to limit the imposition of more severe criminal penalties to a violation of Proposition 68's chapter 5. The voters had two "Chapter 5" additions to title 9 before them and they approved them both. They did not choose between them. Thus, we conclude that the criminal penalties added by Proposition 68 will apply to a violation of the provisions of "Chapter 5" of either proposition.
With respect to the civil penalty increase, however, it is clear from the language of the amendment to section 91005 that the change can only apply to (1) those provisions of Proposition 68 which we have found valid and which are expressly listed in the amendment to section 91005 and (2) the provisions of the Act expressly listed in that amendment. Therefore, the amendment to section 91005 must be read to exclude all of the listed sections of Proposition 68's chapter 5 except sections 85305-85307 and 85309. Since the voters approved penalties for violations of all of the sections mentioned in the amendment to section 91005, there is no reason to believe they would have changed their minds had the invalid sections not been specifically mentioned in the amended language.
The other listed sections from article 3 of Proposition 68's chapter 5 (sections 85300-85304, 85308 and 85310) are conceded by petitioner to be invalid. (See fn. 15, ante.) Likewise, it is our understanding that no dispute exists with respect to the invalidity of the provisions of articles 4 and 5 ( §§ 85400-85401, 85405, 85500-85502, 85504 and 85506) and three of the five sections in article 6 (85601-85603) of chapter 5 which are listed in new section 91005. In addition, as we have already noted, the provisions of said articles 4 and 5 were found invalid as conflicting with Proposition 73, by the decision of another Court of Appeal. (See fn. 2, ante ). We also note (fn. 38, post ) that two sections from article 6 ( §§ 85600 and 85604) are conceded to be valid.
We also note that the drafters of Proposition 68 sufficiently drew the voters' attention Having concluded that removal of the invalid portions of Proposition 68 would not have caused the voters to disapprove of the penalty portions of that initiative, the third test for severability of the penalty portions is therefore met.
Proposition 68's amendments to the Act's penalty provisions also pass the grammatical and the functional tests. Each amendment is a discrete section of Proposition 68, grammatically complete and distinct from the other portions of the proposition. None of the amendments depend on any of the invalid portions of Proposition 68 for their application.
The Institute of Governmental Advocates, as amicus curiae, argues that the voters could not have intended what Proposition 68's amendment to section 91000 provides, i.e., a strict liability felony for violation of the provisions in Proposition 68. We disagree with part of this argument and, of necessity, defer any ruling (see fn. 37, post ) on the substantive constitutional issue which the argument raises.
The text of Proposition 68 indicates that the initiative removes from former section 91000 the element of the actor's knowledge or willfulness in violating any of the provisions in the Act or in Propositions 68 and 73. A comparison of the old and new language for section 91000 shows that the words "knowingly or willfully," which are contained in the old language, are not transferred to the new language. Thus, a comparison of the old and new section shows the strict liability nature of the amended section.
However, we do agree with amicus that it was not made clear to the voters that they would be enacting felony provisions by voting for Proposition 68. Deleting the word "misdemeanor" and adding a provision for imprisonment in a state prison does not really inform the average voter that the new penalty includes the possibility of a felony conviction. We do not believe that the average person understands that a sentence to the state prison system is only given for felony convictions. However, the test for severability is not whether the voters would have voted for Proposition 68's amendment of section 91000 had it specifically stated that violation of the provisions in that proposition could be punished as a felony. Rather, the test is whether the voters would have voted for the amendment of section 91000 had they foreseen the invalidation of other portions of Proposition 68. We have already decided that the answer to that question is "yes."
As it is not before us, and has not been briefed by the parties, we do not address the question of the constitutional validity of a strict liability felony.
CONCLUSION
In sum, and for all of the reasons set out, we hold that Proposition 68's (1) non-election year prohibition ( § 85309); (2) aggregate contribution limitations ( §§ 85305-85307); (3) provisions regarding the aggregation of payments ( § 85312, as modified and limited herein) and the making of family contributions ( § 85314); (4) regulation of the return of contributions ( § 85311); (5) special provisions regarding loans (section 85313, subds. (a) and (b)); (6) regulation of the timing of contributions as between (a) primary and general elections and (b) special and special runoff elections ( § 85317); and (7) amendments to the Act's criminal ( § 91000) and civil ( § 91005) penalties are not in irreconcilable conflict with Proposition 73, and are severable from the invalid provisions of Proposition 68. They are thus valid and enforceable as are the several provisions of Proposition 68 which
As we have concluded that a significant portion of the provisions of Proposition 68 have survived the passage of Proposition 73 and may be enforced, the related findings, statement of purposes and definitions must, of necessity, also be recognized as valid. The Commission's Opinion rejected them only because it had reached a conclusion opposite from ours regarding the operative provisions here at issue. Accordingly, we conclude that (1) the "findings and declarations" contained in section 85101, subdivisions (a), (c), (d), (e), (g) and (i); (2) the "purposes" of Proposition 68 contained in section 85102, subdivisions (a), (b), (f), (g), (h), (i), (j), (k) and (m); and (3) the definitions of "small contributor political action committee" (section 85202), "two-year period" (section 85204) and "organization" (section 85206), all are valid and enforceable.
DISPOSITION
A peremptory writ shall issue directing the Commission to recognize as valid and to enforce the provisions of Proposition 68 in accordance with the views expressed herein. However, in order to avoid confusion, surprise or hardship, our opinion shall have prospective application only. None of the provisions of Proposition 68 which we have determined to be valid and enforceable shall be deemed to have been in effect prior to the date on which this opinion becomes final.
By final we mean the date on which this opinion becomes final as to both this court and the Supreme Court. It is only then that the peremptory writ which we have ordered may issue. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 181, 203 Cal.Rptr. 626, 681 P.2d 893.
KLEIN, P.J., and ARABIAN, J., concur.
APPENDIX
Sections 85100 through 85400 which were added to the Government Code by Proposition 73 provide as follows:
" § 85100. [Short Title ]
"This chapter shall be known and cited as the 'Campaign Contribution Limits Without Taxpayer Financing Amendments to the Political Reform Act.' "
" § 85101. [Previous or Local Conflicting Limitations ]
"(a) Nothing in this chapter shall affect the validity of a campaign contribution limitation in effect on the operative date of this chapter which was enacted by a local governmental agency and imposes lower contribution limitations.
"(b) Nothing in this chapter shall prohibit a local governmental agency from imposing lower campaign contribution limitations for candidates for elective office in its jurisdiction."
" § 85102. [Definitions ]
"The following terms as used in this chapter have the following meanings:
"(a) 'Fiscal year' means July 1 through June 30. "(b) 'Person' means an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, association, committee, and labor organization.
"(c) 'Political committee' means a committee of persons who receive contributions from two or more persons and acting in concert makes contributions to candidates.
"(d) 'Broad based political committee' means a committee of persons which has been in existence for more than six months, receives contributions from one hundred or more persons, and acting in concert makes contributions to five or more candidates.
"(e) 'Public moneys' has the same meaning as defined in Section 426 of the Penal Code."
" § 85103. [Application of Definitions ]
"The provisions of Section 81012 shall apply to the amendment of this chapter."
" § 85104. [Operative Date of Chapter ]
"The provisions of this chapter shall become operative on January 1, 1989."
" § 85200. [Statement of Intention ]
"Prior to the solicitation or receipt of any contribution or loan, an individual who intends to be a candidate for an elective office shall file with the commission a statement signed under penalty of perjury of intention to be a candidate for a specific office."
" § 85201. [Contribution Account; Establishment ]
"(a) Upon the filing of the statement of intention pursuant to Section 85200, the individual shall establish one campaign contribution account at an office of a financial institution located in the state.
"(b) Upon the establishment of an account, the name of the financial institution, the specific location, and the account number shall be filed with the commission within 24 hours.
"(c) All contributions or loans made to the candidate, to a person on behalf of the candidate, or to the candidate's controlled committee shall be deposited in the account.
"(d) Any personal funds which will be utilized to promote the election of the candidate shall be deposited in the account prior to expenditure.
"(e) All campaign expenditures shall be made from the account."
" § 85202. [Contributions; Acceptance and Deposit ]
"(a) A candidate may only accept contributions from persons, political committees, broad based political committees, and political parties and only in the amounts specified in Article 3 (commencing with Section 85300). A candidate shall not accept contributions from any other source.
"(b) All contributions deposited into the campaign account shall be deemed to be held in trust for expenses associated with the election of the candidate to the specific office for which the candidate has stated, pursuant to Section 85200, that he or she intends to seek or expenses associated with holding that office."
" § 85300 [Public Moneys ]
"No public officer shall expend and no candidate shall accept any public moneys for the purpose of seeking elective office."
" § 85301. [Individual Contributions or Loans to Candidate or Committees Controlled by Candidate ]
"(a) No person shall make, and no candidate for elective office, or campaign treasurer, shall solicit or accept any contribution or loan which would cause the total amount contributed or loaned by that person to that candidate, including contributions or loans to all committees controlled by the candidate, to exceed one thousand dollars ($1,000) in any fiscal year.
"(b) The provisions of this section shall not apply to a candidate's contribution of his or her personal funds to his or her own campaign contribution account."
" § 85302. [Individual Contributions or Loans to Political Committees, Broad Based Political Committees, or Political Parties ]
"No person shall make and no political committee, broad based political committee, or political party shall solicit or accept, any contribution or loan from a person which " § 85303. [Contributions or Loans by Political Committees, Broad Based Political Committees, or Political Parties to Candidate or Committees Controlled by Candidate; Contributions for Other Purposes ]
"(a) No political committee shall make, and no candidate or campaign treasurer shall solicit or accept, any contribution or loan which would cause the total amount contributed or loaned by that committee to that candidate for elective office or any committee controlled by that candidate to exceed two thousand five hundred dollars ($2,500) in any fiscal year.
"(b) No broad based political committee or political party shall make and no candidate or campaign treasurer shall solicit or accept, any contribution or loan which would cause the total amount contributed or loaned by that committee or political party to that candidate or any committee controlled by that candidate to exceed five thousand dollars ($5,000) in any fiscal year.
"(c) Nothing in this Chapter shall limit a person's ability to provide financial or other support to one or more political committees or broad based political committees provided the support is used for purposes other than making contributions directly to candidates for elective office."
" § 85304. [Transfers of Contributions ]
"No candidate for elective office or committee controlled by that candidate or candidates for elective office shall transfer any contribution to any other candidate for elective office. Transfers of funds between candidates or their controlled committees are prohibited."
" § 85305. [Special Elections and Special Runoff Elections ]
"(a) This Section shall only apply to candidates who seek elective office during a special election or a special runoff election.
"(b) As used in this Section, the following terms have the following meanings.
"(1) 'Special election cycle' means the day on which the office becomes vacant until the day of the special election.
"(2) 'Special runoff election cycle' means the day after the special election until the day of the special runoff election.
"(c) Notwithstanding Section 85301 or 85303 the following contribution limitations shall apply during special election cycles and special runoff election cycles:
"(1) No person shall make, and no candidate for elective office, or campaign treasurer, shall solicit or accept any contribution or loan which would cause the total amount contributed or loaned by that person to that candidate, including contributions or loans to all committees controlled by the candidate, to exceed one thousand dollars ($1,000) during any special election cycle or special runoff election cycle.
"(2) No political committee shall make, and no candidate or campaign treasurer shall solicit or accept, any contribution or loan which would cause the total amount contributed or loaned by that committee to that candidate for elective office or any committee controlled by that candidate to exceed two thousand five hundred dollars ($2,500) during any special election cycle or special runoff election cycle.
"(3) No broad based political committee or political party shall make and no candidate or campaign treasurer shall solicit or accept, any contribution or loan which would cause the total amount contributed or loaned by that committee or political party to that candidate or any committee controlled by that candidate to exceed five thousand dollars ($5,000) during any special election cycle or special runoff election cycle."
" § 85306. [Possession of Funds on Effective Date of Chapter ]
"Any person who possesses campaign funds on the effective date of this chapter " § 85307. [Application of Article; Loans ]
"The provisions of this article regarding loans shall apply to extensions of credit, but shall not apply to loans made to the candidate by a commercial lending institution in the lender's regular course of business on terms available to members of the general public for which the candidate is personally liable."
" § 85400. [Elected Officeholders; Speeches, Articles, or Published Works on Governmental Process ]
"No elected officeholder shall accept any gift or honorarium for any speech, article, or published work on a subject relating to the governmental process from any single source which is in excess of one thousand dollars ($1,000), in any calendar year, except reimbursement for actual travel expenses and reasonable subsistence in connection therewith."
" § 85101. [Findings and Declarations ]
"The people find and declare each of the following:
"(a) Monetary contributions to political campaigns are a legitimate form of participation in the American political process, but the financial strength of certain individuals or organizations should not permit them to exercise a disproportionate or controlling influence on the election of legislative candidates.
"(b) ....................
"(c) The rapidly increasing costs of political campaigns have forced many legislative candidates to raise larger and larger percentages of money from statewide interest groups with a specific financial stake in matters before the Legislature. This has caused the public perception that legislators' votes are being improperly influenced by monetary contributions. This perception is undermining the credibility and integrity of the Legislature and the governmental process.
"(d) The average legislative candidate now raises over 90% of his or her campaign contributions from sources outside his or her own district. This has caused the growing public perception that legislators are less interested in the problems of their own constituents than the problems of wealthier statewide contributors.
"(e) Legislative candidates are raising less money in small contributions and more money in large individual and organizational contributions. This has created the public impression that the small contributor has an insignificant role to play in political campaigns.
"(f) ....................
"(g) Legislators are responding to high campaign costs by raising large amounts of money in off-election years. This fundraising distracts legislators from important public matters, encourages contributions which may have a corrupting influence and gives incumbents an unfair fundraising advantage over potential challengers.
"(h) ....................
"(i) The integrity of the legislative process, the competitiveness of campaigns and public confidence in legislative officials are all diminishing."
" § 85102 [Purpose of This Chapter ]
"The people enact this Act to accomplish the following purposes:
"(a) To ensure that individuals and interest groups in our society have a fair and equal opportunity to participate in the elective and legislative processes.
"(b) To reduce the influence of large contributors with a specific financial stake in matters before the Legislature, thus countering the perception that legislation is influenced more by the size of contributions than the merits of legislation or the best interests of the people of California.
"(c) ....................
"(d) ....................
"(e) ....................
"(f) To increase the importance of in-district contributions.
"(g) To increase the importance of smaller contributions.
"(h) To eliminate off year fundraising.
"(i) To reduce excessive fundraising advantages of incumbents and thus encourage competition for elective office.
"(j) To allow candidates and legislators to spend a lesser proportion of their time on fundraising and a greater proportion of their time discussing important legislative issues.
"(k) To improve the disclosure of contribution sources in reasonable and effective ways.
"(l) ....................
"(m) To help restore public trust in the state's legislative and electoral institutions."
" § 85202. [Small Contributor Political Action Committee ]
" 'Small contributor political action committee' means any committee which meets all of the following criteria:
"(a) All the contributions it receives from any person in a twelve month period total $50 or less.
"(b) It has been in existence at least six months.
"(c) It contributes to at least five candidates.
"(d) It is not a candidate-controlled committee."
" § 85204. [Two-Year Period ]
" 'Two-year period' means the period commencing with January 1 of an odd-numbered year and ending with December 31 of an even-numbered year."
" § 85206. [Organization ]
" 'Organization' means a proprietorship, labor union, firm, partnership, joint venture, syndicate, business trust, company, corporation, association or committee which has 25 or more employees, shareholders, contributors, or members."
" § 85309. [Off-Year Contributions, Prohibition ]
"(a) No legislative candidate or legislator or any controlled committee of such a candidate or legislator shall accept any contribution in any year other than the year in which the legislative candidate or legislator is listed on the ballot as a candidate for legislative office.
"(b) No legislative caucus committee or political party committee supporting or opposing legislative candidates shall accept any contribution in an odd-numbered year."
" § 85305. [Contributions From Non-Individuals; Limitations ]
"No more than a total of fifty thousand dollars ($50,000) in the case of an Assembly candidate, and a total of seventy-five thousand dollars ($75,000) in the case of a Senate candidate, for either a primary, general, special or special runoff election, shall be accepted in contributions from non-individuals by any candidate and the controlled committee of such a candidate. Contributions from political parties and legislative caucuses shall be exempt from this provision."
" § 85306. [Total Contributions From Persons; Limitations ]
"No person shall make to legislative candidates or to committees supporting legislative candidates contributions aggregating more than twenty-five thousand dollars ($25,000) in a two-year period. Contributions to and contributions from political parties and legislative caucuses shall be exempt from this provision."
" § 85307. [Total Contributions From Organizations or Small Contributor Political Action Committees, Limitations ]
"No organization or small contributor political action committee shall make to legislative candidates or to committees supporting legislative candidates contributions aggregating more than two hundred thousand dollars ($200,000) in a two-year period. Contributions from political parties and legislative caucuses shall be exempt from this section."
" § 85311. [Return of Contributions ]
"A contribution shall not be considered to be received if it is not negotiated, deposited, or utilized, and in addition it is returned to the donor within fourteen (14) days of receipt."
" § 85312. [Aggregation of Payments ]
"For purposes of the contribution limitations in Sections 85300-85307, inclusive, and Section 85310, the following shall apply:
"(a) All payments made by a person, organization or small contributor political action committee whose contributions or expenditure activity is financed, maintained or controlled by any business entity, labor organization, association, political party or any other person or committee, including any parent, subsidiary, branch, division, department or local unit of the business entity, labor organization, association, political party or any other person, or by any group of such persons shall be considered to be made by a single person, committee or small contributor political action committee.
"(b) Two or more entities shall be treated as one person when any of the following circumstances apply:
"(1) The entities share the majority of members of their boards of directors.
"(2) The entities share two or more officers.
"(3) The entities are owned or controlled by the same majority shareholder or shareholders.
"(4) The entities are in a parent-subsidiary relationship.
"(c) An individual and any general partnership in which the individual is a partner, or an individual and any corporation in which the individual owns a controlling interest, shall be treated as one person.
"(d) No committee which supports or opposes a candidate for legislative office shall have as officers individuals who serve as officers on any other committee which supports or opposes the same candidate. No such committee shall act in concert with, or solicit or make contributions on behalf of, any other committee. This subdivision shall not apply to treasurers of committees if these treasurers do not participate in or control in any way a decision on which legislative candidate or candidates receive contributions."
" § 85313. [Loans, Limitations ]
"(a) A loan shall be considered a contribution from the maker and the guarantor of the loan and shall be subject to the contribution limitations of this chapter.
"(b) Every loan to a candidate or the candidate's controlled committee shall be by written agreement and shall be filed with the candidate's or committee's campaign statement on which the loan is first reported.
"(c) The proceeds of a loan made to a candidate by a commercial lending institution in the regular course of business on the same terms available to members of the public and which is secured or guaranteed shall not be subject to the contribution limits of this chapter.
"(d) Extensions of credit (other than loans pursuant to subdivision (c)) for a period of more than thirty (30) days are subject to the contribution limitations of this chapter."
" § 85314. [Family Contributions ]
"(a) Contributions by a husband and wife shall be treated as separate contributions and shall not be aggregated.
"(b) Contributions by children under 18 shall be treated as contributions by their parents and attributed proportionately to each parent (one-half to each parent or the total amount to a single custodial parent)."
" § 85317. [Primary and General Election Contributions; Time Periods ]
"For purposes of the contribution limitations, contributions made at any time before July 1 of the election year shall be considered primary contributions, and contributions made from July 1 until December 31 of the election year shall be considered general election contributions. Contributions made at any time after the seat has become vacant and up through the date of the election shall be considered contributions in a special election, and contributions made after the special election and up through fifty-eight (58) days after the special runoff election shall be considered contributions in a special runoff election."
1. The individual contribution limitations in sections 85300-85304, inclusive, conflict with the contribution limitation scheme in sections 85300-85305.
2. The prohibition on transfers (section 85308) and the limitations on gifts and honoraria (section 85310) conflict with similar provisions in sections 85304 and 85400. (Like its contribution limits, Proposition 73's restrictions on receipt of gifts and honoraria apply alike to all elected office holders.)
3. The provisions relating to loans by commercial lending institutions and extensions of credit other than commercial loans (section 85313, subds. (c) and (d)) conflict with the direct language of section 85307.
4. The provisions of Proposition 68 relating to statewide and local candidates (section 85315) and the prohibitions against more than one committee and one checking account (section 85316) are in direct conflict with provisions of Proposition 73 which expressly cover statewide and local candidates and require all to use only one campaign account.
In addition, as we have already stated in footnote 2, ante, a number of the other provisions of Proposition 68 ( §§ 85400-85405, 85500-85506, 85700, subds. (a) and (c) and 85701 and the new sections added to the Revenue and Taxation Code, §§ 18775-18776) have been declared invalid and unenforceable by the decision of another court. The Commission has also concluded in its Opinion that sections 85601-85603 are in conflict with Proposition 73. However, these latter sections are not before us as petitioner has raised no issue with respect to them.
The Commission correctly described the effect of this clause in its Opinion: "Applying this severability clause, any remaining provisions of Proposition 68 take effect in conjunction with Proposition 73, but only if they can be severed from the conflicting provisions of Proposition 68. Any portions of Proposition 68 that cannot be severed from the parts in conflict with Proposition 73 are tainted by that conflict and become void."
"First, we must determine the method of analysis. Two alternative approaches have been suggested: (1) because Propositions 68 and 73 both sought to enact comprehensive campaign finance reform schemes, the scheme enacted by Proposition 73 conflicts with Proposition 68 in its entirety, and nothing of Proposition 68 survives; or (2) Propositions 68 and 73 must be examined provision-by-provision; only where a conflict exists will Proposition 73 prevail over Proposition 68.... The language of the constitution supports the second approach, since Section 10(b) of Article II specifically refers to provisions in conflict. Case law also supports that interpretation.... [p] After the provisions of Proposition 68 which conflict with Proposition 73 are identified, it is necessary to determine whether any remaining provisions of Proposition 68 will become operative.... [p] [These] remaining provisions of Proposition 68 take effect in conjunction with Proposition 73 ... only if they can be severed from the conflicting provisions of Proposition 68." (In re Bell, supra, 11 FPPC Ops. at pp. 3-4.)
" 'Person' means an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, association, committee, and any other organization or group of persons acting in concert." (Emphasis added.)
" 'Committee' means any person or combination of persons who directly or indirectly does any of the following:
"(a) Receives contributions totaling one thousand dollars ($1,000) or more in a calendar year.
"(b) Makes independent expenditures totaling one thousand dollars ($1,000) or more in a calendar year; or
"(c) Makes contributions totaling ten thousand dollars ($10,000) or more in a calendar year to or at the behest of candidates or committees.
"A person or combination of persons that becomes a committee shall retain its status as a committee until such time as that status is terminated pursuant to Section 84214."
1. Notice requirement on independent mass mailings ( § 85600; operative January 1, 1989);
2. Notice requirement for independent expenditures exceeding $10,000 ( § 85604; operative January 1, 1989);
3. Requirement that the Commission prescribe forms and do studies ( § 85700, subds. (b) and (d); operative June 8, 1988);
4. Clarification that administrative penalties are $2,000 per violation ( § 83116; operative June 8, 1988);
5. Requirement that a committee name include the controlling individual's name ( § 84106; operative June 8, 1988);
6. Definition of an intermediary for transmittal of a contribution (
§ 84302.5; operative June 8, 1988);
7. Provisions for severability, amendment, liberal construction and effective date ( §§ 10 through 13 of Proposition 68; operative June 8, 1988).
In view of our determination that this decision should have prospective application only, it necessarily follows that the initial "two-year period" (defined in section 68:85204), which would have commenced to run on January 1, 1989, but for the Commission's Opinion, shall instead commence on the date when this opinion becomes final and shall end on December 31, 1990. In view of the Commission's Opinion, which we declined to stay and upon which legislative candidates have no doubt relied, it would be inappropriate to permit any of the provisions of Proposition 68, which we have determined to be valid, to have effect prior to the finality of our decision.