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HomeMy WebLinkAbout2006-05-31 Packet - SpecialREVISED CITY OF UKIAH CITY COUNCIL AGENDA Special Meeting CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482 May 31,2006 5:30 p.m. 1. ROLL CALL 2. APPROVAL OF MINUTES None. 3. RIGHT TO APPEAL DECISION Persons who are dissatisfied with a decision of the City Council may have the right to a review of that decision by a court. The City has adopted Section 1094.6 of the California Code of Civil Procedure, which generally limits to ninety days (90) the time within which the decision of the City Boards and Agencies may be judicially challenged. 4. AUDIENCE COMMENTS ON NON-AGENDA ITEMS The City Council welcomes input from the audience. If there is a matter of business on the agenda that you are interested in, you may address the Council when this matter is considered. If you wish to speak on a matter that is not on this agenda, you may do so at this time. In order for everyone to be heard, please limit your comments to three (3) minutes per person and not more than ten (10) minutes per subject. The Brown Act regulations do not allow action to be taken on audience comments in which the subject is not listed on the agenda. 5. UNFINISHED BUSINESS a. Goals: Community Services (continued), Airport, Water/Sewer b. Review and Prioritization of Planning Projects (continued from 5/17/06) c. Continued Discussion and Consideration of an Ordinance Regarding Campaign Reform - Baldwin, Rodin (continued from 5/17/06) 6. CLOSED SESSION a. Public Employee Performance Evaluation (Gov't Code Section 54957) Title: City Manager 7. ADJOURNMENT Please be advised that the City needs to be notified 72 hours in advance of a meeting if any specific accommodations or interpreter services are needed in order for you to attend. The City complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was posted on the bulletin board at the main entrance of the City of Ukiah City Hall, located at 300 Seminary Avenue, Ukiah, California, not less than 72 hours prior to the meeting set forth on this agenda. Dated this 26th day of ~__ Sue Goodrick, Risk Manager- --"- CITY OF UKIAH CITY COUNCIL AGENDA Special Meeting CIVIC CENTER COUNCIL CHAMBERS 300 Seminary Avenue Ukiah, CA 95482 May 31, 2006 5:30 p.m. 1. ROLL CALL 2. APPROVAL OF MINUTES None. 3. RIGHT TO APPEAL DECISION Persons who are dissatisfied with a decision of the City Council may have the right to a review of that decision by a court. The City has adopted Section 1094.6 of the California Code of Civil Procedure, which generally limits to ninety days (90) the time within which the decision of the City Boards and Agencies may be judicially challenged. 4. AUDIENCE COMMENTS ON NON-AGENDA ITEMS The City Council welcomes input from the audience. If there is a matter of business on the agenda that you are interested in, you may address the Council when this matter is considered. If you wish to speak on a matter that is not on this agenda, you may do so at this time. In order for everyone to be heard, please limit your comments to three (3) minutes per person and not more than ten (10) minutes per subject. The Brown Act regulations do not allow action to be taken on audience comments in which the subject is not listed on the agenda. 5. UNFINISHED BUSINESS a. Goals: Community Services (continued), Airport, Water/Sewer b. Continued Discussion and Consideration of an Ordinance Regarding Campaign Reform - Baldwin, Rodin (continued from 5/17/06) 6. ADJOURNMENT Please be advised that the City needs to be notified 72 hours in advance of a meeting if any specific accommodations or interpreter services are needed in order for you to attend. The City complies with ADA requirements and will attempt to reasonably accommodate individuals with disabilities upon request. I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was posted on the bulletin board at the main entrance of the City of Ukiah City Hall, located at 300 Seminary Avenue, Ukiah, California, not less than 72 hours prior to the meeting set forth on this agenda~25- Dated this E~th day of May, 2006. Marie Ulvila, City Clerk ITEM NO. 5a MEETING DATE: May 31,2006 AGENDA SUMMARY REPORT SUBJECT: GOALS: COMMUNITY SERVICES (CONTINUED), AIRPORT AND WATER/SEWER Staff is returning to Council to complete the discussion on departmental goals. Community Services presented a portion of their goals at the March 15th workshop. The goals and objectives for the Golf, Recreation and Museum (pages 6 -9) remain to be discussed. In addition, the Airport and Water/Sewer departments will present their goals and objectives. RECOMMENDED ACTION: Review proposed goals and provide direction. ALTERNATIVE COUNCIL POLICY OPTIONS: Citizen Advised: Prepared by: Coordinated with: Attachments: Candace Horsley, City Manager Community Services, Airport and Water/Sewer Departments 1. Community Services Department Goals 2. Airport Department Goals 3. WatedSewer Department Goals Candace Horsley, City M~f~ager ATTACHI EN'1%_ / Parks Division Community Services Department Operation and Policy Goals 1. Increase park/golf service worker staffing levels. Staffing levels have not been increase proportionate to the addition of facilities and new projects at existing facilities including increase park-like landscapes at City parking lots, the planting of more than 500 new trees throughout the park system, and the addition of Depot Park, Riverside Park, Orchard Park, Observatory Park and the Ukiah Sports Complex. Furthermore, the usage at City Parks continues to increase, resulting in the need for increased maintenance. Currently, there is the need for 2 additional full time staff members and 1 additional summer seasonal. Timeline: Add 1 full time and 1 summer seasonal in the Fiscal Year 06/07 Budget Add an additional full time staff member in the Fiscal Year 07/08 Budget. Funding General Fund; Potentially offset cost with increase to TOT. 2. With the recent award of the State Grants for Anton Stadium, Ukiah Municipal Swimming poOls and the Ukiah Skate Park, the Department is well beyond 'it's-staffing limits to effectively manage these projects. Each project will require a tremendous amount of coordination that will include fundraising, construction, and volunteer management. Recommend hiring a projects/grants manager that can coordinate all three projects in addition to seeking new grants for other City projects. Timeline: Hire project manager starting in FY 06/07; Will need for a minimum of 3 years. Funding: General Fund, Redevelopment, Grants 3. Develop an animal control operations manual and revise City Ordinanoes related to animal control. Timeline: Develop in FY 06/07 and submit to Council in FY 07/08 4. Provide additional training opportunities for staff including pool operator, pesticide applicator and playground inspection classes. Timeline: Ongoing 5. Continue to seek grant opportunities for park improvements. Timeline: Ongoing Capital Improvement Projects Project Name: Timeline: Project Classification: Location: Estimated Cost: Funding Source(s) Other Considerations: Playground Upgrade and Equipment Replacement Installation of new equipment to be completed Spring 2006 Mandated and Funded FY 05/06. Todd Grove Park, Oak Manor Park, Orchard Park and Vinewood Park $3OO,OOO Proposition 12 and 40; CA State Park Bond Per Capita Allocations Since Park Bond funding is unpredictable, it may be desirable to establish a $25,000 per year contribution to a capital improvement fund to ensure the timely replacement of playground equipment in the future. Most playground equipment will last between 10 to 15 years. Project Name: Timeline: Project Classification: Estimated Cost: Description: Orchard Park Development Summer 2006 Budgeted FY 05/06 $15,000 Completion of the Orchard Park including pathway, landscape and picnic tables. Page 1 Parks Project Name: Anton Stadium Renovation Timeline: FY06/07 (begin fundraising and project development) Estimated Cost: $714,286 Funding Source(s) Grants, Donations, General Fund Current/Potential Funds $75,000 Currently allocated in a City of Ukiah Capital Improvement Fund $500,000 Potential Proposition 40 Competitive Grant Award Grant requires a $214,286 local match. Project Name: Timeline: Estimated Cost: Funding Source(s) Current/Potential Funds Skate Park Development Project FY06/07 (begin fundraising and project development) $714,286 Grants, Donations, General Fund $25,000 Currently held by the Ukiah Skate Park Committee $500,000 Potential Proposition 40 Competitive Grant Award Grant requires a $214,286 local match. Project Name: Timeline: Project Classification: Estimated Cost: Description: Funding Source(s) Ukiah Sports Complex Phase III Spring 2006 Budgeted FY 05/06 $25,O0O Continued lighting and spectator seating upgrades General Fund / Park Development Fund Project Name: Timeline: Project Classification: Estimated Cost: Funding Source(s) Ukiah Sports Complex Phase IV Complete in phases as funding is available Not Currently Budgeted $100,000 Pave the parking lot $45,000 Renovate/repair lighting .on Field 1 $45,000 Renovate/repair lighting on Field 2 General Fund, Park Development Fund, Grants, and Donations Project Name: Timeline: Estimated Cost: Funding Source(s) Current/Potential Funds Ukiah Municipal Swimming Pools Renovation Project FY06/07 (begin fundraising and project development) $714,286 Grants, Donations, Public Utility Benefit Fund $100,000 Potentially, Public Utility Benefit Funds could be used to replace the solar system and photovoltaic component of the project. $500,000 Potential Proposition 40 Competitive Grant Award Grant requires a $214,286 local match. Project Name: Timeline: Project Classification: Estimated Cost: Todd Grove Park BBQ Area Renovation Project Spring 2006 Budgeted FY 05/06 $30,o00 Project Name: Timeline: Estimated Cost: Description: Park & Golf Division Maintenance Yard FY06/07 (begin planning and capitalization of funds) Undetermined Build or renovate a maintenance yard for the Parks and Golf Divisions including office space, workshop, supply storage, and equipment storage. Page 2 Parks Project Name: Timeline: Project Classification: Estimated Cost: Description: Project Name: Timeline: Project Classification: Estimated Cost: Description: Project Name: Timeline: Project Classification: Estimated Cost: Description: Park Amenity Replacement and Renovation Fund Ongoing Budgeted for FY 05/06 & Recommended for future years $20,000 per year Develop a fund to replace park amenities including but not limited to tables, tennis courts, benches, bathrooms, and pathways must be replaced/renovated routinely to maintain an acceptable standard for public use. Given the current inventory of amenities throughout the City's park system, an ongoing $20,000 per year capital contribution for amenity renovation/replacement is recommended to maintain current services/standards. Observatory Park Development Summer 2006 Budgeted FY 05/06 $4O,OOO Completion of the Observatory Park Development Project including pathway, landscape and picnic tables. Observatory Buildings Renovation FY06/07 Funds Reserved FY 05/06 $30,000 Renovation of 5 structures at Observatory Park including house, office, observation, and two sheds. The renovation will including interior/exterior painting, roofing, and repair to interior walls. Page 3 Parks Conference Center Division Community Services Department Operation and Policy Goals 1. Update rental rates for the Conference Center within the next six months. Plans are to simplify the current rates, with the intent to increase the volume of use in many of the rooms. Timeline: Fiscal Year 06/07 2. Develop a strategic marketing strategy that will begin this summer. Part of the marking strategy will be to increase visibility in the community, re-identify our customer base, and redefine the Conference Center's image and service; i.e. not just for big events, but also for small and medium business meetings and events. Timeline: Fiscal Year 06/07 3. Implement a new reservation system with on-line capabilities. Timeline: Fiscal Year 06/07 4. Acquire and implement new technology to meet service demand including wireless internet access, sound systems, cable to each room, and LCD projectors. Timeline: Fiscal Year 06/07 5. Evaluate and revise the maintenance and capital improvement plans for the Conference Center and City rental facilities. Timeline: Fiscal Year 06/07 6. Actively updating policy and procedures for facility rentals. Timeline: Fiscal Year 06/07 7. Develop partnerships with professional training companies and educational institutions to offer workshops, seminars, and classes. Timeline: Fiscal Year 06/07 Capital Improvement Projects Project Name: Estimated Cost: Description: Conference Center Carpet and Tile Floor Renovation $75,000 (budgeted in phases over multiple fiscal years) Develop a fund to replace aged and worn carpet (8,600 sq. ft.) and replace damaged tile. Work can be budgeted and completed in phases. Project Name: Estimated Cost: Description: Conference Center Furniture Replacement $35,625 (budgeted in phases over multiple fiscal years) Develop a fund to replace aged and worn tables and chairs (75 tables & 600 Chairs). Project Name:. Estimated Cost: Description: Conference Center HVAC Replacement Fund $50,000 (budgeted in phases over multiple fiscal years) Develop a fund for the future replacement of aged HVAC units and clean/repair ducting. Complete' in phases and as needed. Page 4 Conference Center General Government Buildings Community Services Department Operation and Policy Goals 1. Evaluate building maintenance needs of all City Departments and increase staff accordingly to address the needs of these other non Civic Center facilities. Over the past two years, staff has identified a growing need from other Departments for facility maintenance services. This work includes everything from heavy construction to routine maintenance. The Division is currently at a point were the request for services is well beyond that which can be accommodated with our currently staffing levels. Furthermore, many of the services requested require two people for safety and/or for heavy lifting. Timeline: Complete needs assessment 'prior to 06/07 Fiscal Budget Funding: General Fund and Enterprise Accounts Capital Improvement Projects Project Name: Timeline: Project Classification: Estimated Cost: Description: Civic Center Stucco Repair Summer 2006 Budgeted 05/06 $50,000 (additional funds may be needed) Repair failing exterior stucco on Civic Center building. Project Name: Project Classification: Estimated Cost: Description: Civic Center Tile Roof Replacement Not Currently Funded $250,000 (budgeted in phases over multiple fiscal years) Create a fund to replace the roof system at the facility. Currently, the tile roof and gutters of the main building need to be repaired/replaced. Complete in phases and as needed. Project Name: Project Classification: Estimated Cost: Description: Council Chamber Seating Not Currently Funded $35,000 Replace theater seating in the Council Chambers. Project Name: Project Classification: Estimated Cost: Description: Administration Wing Partitions Not Currently Funded $75,000 Replace aged and failing partition wall system in administration wing of the Civic Center. Project Name: Project Classification: Estimated Cost: Description: Civic Center & Annex Security System Not Currently Funded $95,OOO Install security system for Civic Center Buildings; currently the facilities are not protected; the system would also include cameras at the cashier stations. Page 5 General Government Golf Division Community Services Department Operation and Policy Goals 1. Develop a detailed marketing plan that includes the collection of customer data, promotional discounts during Iow play periods, and direct and mass marketing strategies. Timeline: Start in Fiscal Year 06/07; Continually modify. 2. Create new customers through increased instructional programs specifically targeting youth and baby boomers. Timeline: Start in Fiscal Year 06/07 3. Complete a course master plan that will outline and prioritize improvement including the expansion of practice facilities including the possibility of a driving range. Timeline: Start in Fiscal Year 06/07; Complete within two years Capital Improvement Proiects Project Name: Project Classification: Estimated Cost: Description: Cart Path Replacement Fund Contingent on availability of funds $100,000 Ongoing replacement/renovation of aged and damaged asphalt. Complete in phases and as needed. Project Name: Project Classification: Estimated Cost: Description: Todd Grove Building Maintenance Fund Contingent on availability of funds $100,000 Create a fund to renovate building including interior/exterior paint, HVAC units, floor/carpet, fixtures, bathrooms, kitchen, etc. Complete in phases and as needed. Project Name: Project Classification: Estimated Cost: Description: Driving Range Contingent on availability of funds Unknown; feasibility study will be completed with Golf Pro contract. Develop a driving range at the Golf Course Project Name: Project Classification: Estimated Cost: Description: Bridge Renovation on #10 & #11 Damaged during winter storm; Potentially FEMA funded $20,000 Renovate damaged bridges Project Name: Project Classification: Estimated Cost: Description: Rebuild Tee Boxes Contingent on availability of funds $10,000 - $20,000 per tee (Cost may be significantly less if completed as a volunteer project) Renovate existing tee boxes on each hole. Complete in phases and as needed. Page 6 Golf Project Name: Project Classification: Estimated Cost: Description: Project Name: Project Classification: Location: Estimated Cost: Description: Rebuild Greens to U.S.G.A. Specifications Contingent on availability of funds $20,000 - $30,000 per green (Cost may be significantly less if completed as a volunteer project) Renovate existing tee boxes on each hole. Complete in phases and as needed. Drainage Renovation Fund Contin'gent on availability of funds 599 Park Blvd. $250,OOO (Cost may be significantly less if completed as a volunteer project) Repair existing drainage systems and install new systems in needed areas throughout the course. Complete in phases and as needed. Page 7 Golf Recreation Division Community Services Department Operation and Policy Goals 1. Implement recreation registration software and on-line services. Timeline: FY 06/07 Funding: General Fund 2. Secure facilities for recreation programming. Formalize use of facility agreement with Ukiah Unified School District and explore feasibility with Ukiah Valley Cultural and Recreation Center. Timeline: FY 06/07 Funding: Supported by programs 2. Expand recreation programs, with an emphasis on developing Senior programs, create a spring and/or winter break day camp. Timeline: FY 06/07 Funding: Expenditures offset by revenue 3. Move forward with the feasibility of using the Observatory house for recreation classes and/or a child development center. Timeline: Complete Feasibility Study in FY 06/07 Funding: General Fund 4. Increase the 32-hour sports coordinator position to a full-time position contingent on program funding. Timeline: Within the next 2 fiscal years Funding: Expenditures offset by revenue 5. Continue to work with the Parks, Recreation, and Golf Commission to address the expanding recreational needs of the community. Timeline: Ongoing 6. Serve as coordinating agency for the Ukiah Country Pumpkinfest, Sundays in the Park Free Concert Series, and the Movies in the Plaza summer series. Timeline: Ongoing Page 8 Recreation Grace Hudson Museum and Sun House Community Services Department Operation and Policy Goals 1. Reinstate the part-time Museum Preparatory position that was removed due to budget cutbacks. The position assists primarily with the set-up and take down of the exhibits. Estimated number of hours per year is 800. Timeline: 3-5 years Funding: Museum Guild, donations, grants 2. Develop, promote, present and fund public educational programs to enhance understandings of exhibits. Produce and distribute free educational packets to school classes to accompany exhibits. Timeline: Ongoing 3. Finalize and approve a new long-range plan for the Museum, incorporating the roles of the Guild and Endowment. Along with updating Museum's Policies and Procedures Handbook. Timeline: FY 05/06 to 06/07 Capital Improvement Projects Project Name: Project Classification: Estimated Cost: Description: Funding Source(s) Museum Native Plants Courtyard Project Museum Guild Project $100,000 Development of courtyard including hardscape, gazebo, water feature, native plant landscape, seating, fencing, lighting, etc. Complete in phases and as funding is available. Donations, Grants and Guild Fundraisers Project Name: Project Classification: Estimated Cost: Description: Funding Source(s) Sun House Structural Renovation Museum Guild Project $26,000 Needed structural and mechanical repairs and upgrades to Sun House as outlined in earlier Architectural Assessment Report. Donations, Grants and Guild Fundraisers Project Name: Project Classification: Estimated Cost: Description: Funding Source(s) Sun House Exhibit Renovation Museum Guild Project Unknown Restoration of the Sun House studio, kitchen, back porch, bedroom, bedroom closet and bathroom to their original 1912 condition. Completed in phases contingent on funding. Donations, Grants and Guild Fundraisers Page 9 Grace Hudson ATTACHMENT_ ~:~ Airport Department Goals, Objectives and Issues May, 2006 AIRPORT HISTORY The City purchased property in the 1930's for the airport and pilots used the dirt/sod runway of about 2,000 ft. in length during those days. In 1941, the City obtained a grant from the Federal Government to build a runway and parallel taxiway 4,000 ft. in length. In the 1950's, additional Federal Funding was secured for property purchase at the south end and an additional 1,000 ft. of runway was added. The configuration and size of the airport has remained basically the same over the years with the exception of hangar and ramp development on the west side. NARRATIVE Funding for most airport projects come from three sources, Federal and State grant monies, and in hOuse revenues. Funding from grant sources are much larger than in house revenues therefore most projects are listed through the grant process. Because FAA and CalTrans require an ongoing Airport Capital Improvement Program (ACIP) to be eligible for grant funds, the airport reviews the ACIP annually and submits to FAA. This process is ongoing now. Staff prepares the requested projects, Airport Commission reviews and amends them, and then the consultant further reviews the document before submission to FAA. The ACIP projects are prioritized by date as required by FAA, safety and Federal Aviation Regulation (FAR) compliance being the most important items in this prioritization. The ACIP has been submitted to the consultant and we are waiting approval by the FAA as of this writing. ACIP PROJECTS IN PROGRESS NOW 1) FAA infrastructure grant in the amount of $715,000 (approved by council 2002) A) Additional airport security fencing B) Storm drain repair midfield due to failure C) Enclose open drainage ditch northwest side D) Pave service road to fuel facility on east side E) Construct freight/ramp operations area on northwest side 2) FAA entitlement grant in the amount of$114, 285 (approved by council 2005) A) Reconstruct airport storm drain system phase 1 (design/study) B) Crack seal of runway FUTURE ACIP PROJECTS Project Description Est. Cost Year Requested Reconstruction of Storm Drain Phase II construction $ 675,000 2006-2007 This is the second phase of the project now in progress. The storm drain system is World War I1 vintage and there have been two failures in the system and repair is needed. Additional funds for 2002 grant shortfall $ 150,000 2006-2007 Due to the long delay in implementation of this grant, construction costs have risen and additional funds are needed to complete the project. This grant request is pending with FAA now. Super AWOS $ 75,000 2006-2007 This device provides aviation weather reports and most important, airport traffic advisories for our airport. Airport traffic advisories will increase safety and assist in noise abatement issues. Environmental Baseline/Airport Master Plan update $140,000 2006-2007 Our consultant has advised that an Environmental baseline will soon be required by FAA for any future project. Additionally, the current Airport Master Plan is dated 1996, and needs to be updated. Avigation easements/property purchase at south west side of airport property $ 1,100,000 2007-2008 Private property significantly encroaches into the clear zone on the approach end of the south runway. FAA has suggested that this property be purchased by the city or at least obtain avigation easements for the property. Extend service road to north end $100,000 2007-2008 The service road which passes Fed Ex needs to be extended to the north end of the property for future airport development. Construct stopway/overrun on runway 33 $175,000 2007-2008 Construct a 200 fi. overrun at south end for enhanced safety. This project has been included in the ACIP for several years and remains unfunded. Project Description Est. Cost Year Requested Construct taxiway connector on north east comer $150,000 2007-2008 The lumber mill property on the north east side is becoming vacant and freight businesses have stated an interest in the property. A taxiway connector is needed for access to the property. Construct secure area for fuel trucks $ 60,000 2008-2009 Construct a 20X30 area fenced, covered, and bermed for secure storage of fuel trucks. This will be required in the future for secondary containment of fuel vehicles per state requirements. Pave public parking area west side $ 165,000 2008-2009 This area south west of Fed Ex is dirt and needs to be paved for public parking. Construct taxiway on east side $ 500,000 2009-2010 A 2,000 ft. taxiway on the east side will allow aircraft access to the property on that side including access to the fuel facility. Repave runway and taxiway $1,425,000 2010-2011 The Runway was originally constructed in 1941, and a paving overlay was completed in 1984. Additionally, a slurry seal was added in 1997. In order to maintain pavement integrity, the facility needs to be paved again. IN HOUSE AIRPORT REVENUES As mentioned earlier, the third means of funding source for projects is from the annual airport budget. The Airport has experienced several years of deferred maintenance and staff has addressed this by instituting two new programs and increasing staff resources to address the maintenance issue. In addition to the maintenance programs, there are issues that staff is addressing this year which are not costly budget items but are important to keeping the airport operational and financially viable. Below are the programs/projects begun to further improve the airport. 1) Pavement maintenance program (began in 2004) 2) Building maintenance program (began in 2005) 3) Lease negotiations - CDF facility 4) Updates of required operational/safety manuals (HMBP, SOP, SPCC, SWPP) 5) Weed abatement/landscaping OTHER FUNDING SOURCES 1) Airport terminal building in the amount of $2,636,000 (approved by council 2001) In 2002, the city went in a new direction for airport development funds for its airport. An application for assistance was filed with Economic Development Administration (EDA) to build a new Airport Terminal Building. The existing building of approximately 1,500 sq. ft., was purchased used in 1962 from a lumber company, and then moved to the airport. When the application was filed in 2002 and since, there have been requests for additional lease space from both of our car rental companies, one fixed base operator, and even a pharmaceutical company. Additionally, the original EDA application states: "New industries contacted by local economic developers, list access to air transport and air freight as a significant factor in location decisions. Modernizing air travel infrastructure will assist in business and job growth in the county. Other businesses have expressed interest in locating to the airport but cannot due to the lack of space availability." EDA funding for the project was allocated to another state last year, thus the delay in the project, however funding looks good for this year. EDA also asked that this project be bundled with the Brush Street Triangle project to make one larger project. A decision on the funding from EDA should be forthcoming this spring or summer. The structure of this grant is different from FAA grants in that they are funded 60%, the remaining 40% to be funded with USDA loans. Our loan payment for this grant will be $45,000 annually. This loan payment will come from the airport fund. $25,000 of the loan payment will take the place of the recently paid off bulk fuel tank loan payment, the remainder from airport revenues. ATTACHMENt, ~-~'- ¢~ By: Ann Burck and Andy Luke Date: 5/17/06 Goals and Objectives: Purpose: Accomplish by: Time frame Funding Source: objective: 1. WWTP Improvement Maintain compliance with NPDES Contractor, Construction 04/21/2009 $75,060,000 Project Discharge Permit and increase plant Manager and City Staff 611-7410-800 capacity to permit sewer connections from the City and UVSD for next 20 years. 2. Cai-OSHA Compliant Trainings, materials and equipment to Safety Consultant and 12/31/2006 $5,000 Safety Program ensure compliance at WWTP with all Cai- City Staff Not budgeted. OSHA safety regulations. Monthly service charge revenues. 3. Televideo Inspection Locate and identify defects and City Staff 01/13/2010 612-3510-110 Program of Entire obstructions in sewer collection system Sewer Collection for cleaning and repairs. Mandated System under new NPDES Discharge Permit. 4. Percolation Pond Determine if a hydraulic connection Engineering Consultant Workplan- $115,000 Hydrogeologic Study exists between ponds and Russian River. and City Staff 12/20/06 Not budgeted. Mandated by new NPDES Discharge Report - Monthly service charge Permit. 12/20/09 revenues. 5. Levee Maintenance Repair rodent damage and regrade Contractor and City Staff 10/01/2006 $30,000 and Repair percolation pond levees needed for Not budgeted. secondary effluent disposal. Monthly service charge revenues. 6. Reclaimed Water Initial design study for a reclaimed water Engineering Consultant 07/01/2008 State and Local Grants System Study system to reduce use of potable water and City Staff for irrigation. 7. Asset Management Software program to manage assets to Software Consultant and 07/01/2007 $35,000 Program improve efficiency, reduce costs, and City Staff $17,500 in FY 05-06 maximize life of public assets. 612-3505-800-000 Compliance with GASB 34 and State SSMP Program. Mandated under new NPDES Discharge Permit. 8. Grease Control Enforcement of new Grease Interceptor City Staff 01/01/2007 612-3580-110 Program Ordinance to eliminate SSOs due to grease in sewer collection system. Compliance with State SSMP Program. 9. Laboratory Technician Additional sampling and tests mandated City Staff 09/01/2006 Not budgeted. by new NPDES Discharge Permit will Monthly service charge require a full time Lab Tech. revenues. ATTACHMENT By: Ann Burck and Dan Hunt Date: 5/17/06 Goals and Objectives: Purpose: Accomplish by: Time frame Funding Source: objective: 1. Sewer Lateral Implement Sewer Lateral Testing City Staff 01/13/2007 612-3510-110 Inspection Ordinance Ordinance to ensure integrity of sewer laterals to eliminate source of I/I. Compliance with State SSMP Program and River Watch Settlement. 2. Cai-OSHA Compliant Trainings, materials and equipment to Safety Consultant and 12/31/2006 $5,000 Safety Program ensure compliance in W/S Division with City Staff Not budgeted. all Cai-OSHA safety regulations. Monthly service charge revenues. 3. Healthy Waterways Water sampling program for creeks to Engineering Consultant 1/13/2007 $35,000. Study determine if sewer system exfiltration is and City Staff Not budgeted. occurring. Compliance with River Watch Monthly service charge settlement, revenues. 4. Backflow Device Training needed for W/S staff City Staff 07/01/2007 $4,900 in FY 05-06 Testing Program certification. Compliance with DHS 612-3505-160-000 water safety requirements. 5. Water Valve Exercising Water valves need to be exercised at City Staff 07/01/2007 $12,000 Program regular intervals to remove corrosion Not budgeted. and maintain valve function. Compliance Monthly service charge with new DHS Permit requirement, revenues. Purchase data acquisition software to archive valve data in GIS system for future O&M activities. 6. Water Line Water main tie-ins or replacements at Contractor and City Staff 10/01/2007 $377,000 Improvements 700 block of N. State St., Henderson Ln, Fund 840 Capital Corp Yd. Fire protection line, Hazel St. @ Projects 3ackson/Maple, Dora/Grove, and Cypress/Dora, Norton to Ford Ave., Spring St. btw. Perkins & Standley, Cochrane to Helen. 7. Asset Management Software program to manage assets to Software Consultant and 07/01/2007 $35,000 Program improve efficiency, reduce costs, and City Staff $17,500 in FY 05-06 maximize life of public assets. 612-3505-800-000 Compliance with GASB 34 and State SSMP Program. Mandated under new NPDES Discharge Permit. ATTACHMENT_ By: Ann Burck and Alan 3amison Date: 5/17/06 Goals and Objectives: Purpose: Accomplish by: Time frame Funding Source: objective: 1. WTP Improvement Maintain compliance with DHS Permit Contractor, Construction 09/06/2006 $8,318,319 in FY 05-06 Project and new regulations for municipal water Manager and City Staff 840-3850-800 systems. 2. Cai-OSHA Compliant Trainings, materials, and equipment to Safety Consultant and 12/31/2006 $5,000 Safety Program ensure compliance at WTP with all Cai- City Staff Not budgeted. OSHA safety regulations. IVlonthly service charge revenues. 3. Well Siting Study Determine optimum location to construct Engineering Consultant 12/31/2006 $90,000 in FY 05-06 two new groundwater wells to meet DHS and City Staff 820-3908-250-000 water source capacity requirements. 4. 2 New Groundwater Compliance with DHS water source Design Engineer, 12/31/2007 $150,000 Wells capacity requirements. Contractor, and City $110,000 in FY 05-06 Staff 820-3908-250-000 5. New Water Tank on Currently a private tank not isolated Surveyor and City Staff 12/31/2006 $5,000 in FY 05-06 San 3acinta Drive from City water system. Compliance 840-3850-690-000 with DHS water safety requirements. 6. Install 4 production Compliance with SWRCB and Title 22 Design Engineer and 07/01/2007 $35,000 in FY 05-06 meter calibration regulations. City Staff 840-3850-800-000 vaults at all well sites 7. Install new water Compliance with new EPA regulations. City Staff 10/01/2007 $9,000 in FY 05-06 sampling stations 820-3908-250-000 8. Rehabilitate Well #2 New pump and motor, new piping, and Design Engineer, 07/01/2007 $35,000 (75 gpm, 0.108 MGD) new switchgear needed to bring Well #2 Contractor and City Staff Not budgeted. back into service. All these items are 60 Monthly service charge years old. revenues. 9. Seismic Retrofit of Protection against earthquake damage. Tank Contractor and 07/01/2008 Not budgeted. Zone 15 Reservoir Tank was built in 1948 and does not City Staff Monthly service charge have additional strengthening for revenues. earthquake protection. 10. Asset IVlanagement Compliance with GASB 34. Software Software Consultant and 07/01/2007 $17,500 in FY 05-06 Program program to manage assets to improve City Staff 612-3505-800-000 efficiency, reduce costs, and maximize life of public assets. 11. Rehabilitate Well #4 Well needs to be cleaned, new pump Design Engineer, 07/01/2008 $150,000 (750 gpm, 1.08 MGD) and motor, new building, new electrical Contractor and City Staff Not budgeted. switchgear. All these items are 50+ IVlonthly service charge years old. revenues. 12. Water Conservation Develop and implement a year-round Consultant and City 06/30/2008 Not budgeted. Program comprehensive water conservation Staff Monthly service charge program. Will require a full time revenues. program coordinator to implement and sustain program. ATTACHMENT .~:~ ~-( ~, ~ , ~.3. Add Operator-in- An OIT position is a cost effective means City Staff 06/30/2007 Not budgeted. Training Position at of meeting certificated staffing Monthly service charge WTP requirements at WTP. Within 8 years, all revenues. current staff will be retired. 14. Replace :t00,000 Most recent inspection found the interior Contractor and City Staff 07/0~./2008 $150,000 gallon PZ2 Reservoir coating was peeling and had scaling Not budgeted. (60+ yrs. Old) rust. If not replaced, this tank must Monthly service charge have new interior coating, new ladder revenues. and guardrail ($56,000) ITEM NO. 5b DATE: May 31, 2006 AGENDA SUMMARY REPORT SUB3ECT: REVIEW AND PRIORITIZATION OF PLANNING PRO3ECTS SUMMARY: The Community Planning Division of the Planning Department is involved in a wide range of activities. The Staff process development permit applications, provide information to the public, and provide support to the Planning Commission, Paths, Open Space, and Creeks Commission, Traffic Engineering Committee, Main Street Program, Demolition Permit Review Committee, and others. The Staff also are involved with General Plan Implementation projects such as Municipal Code Amendments associated with the Housing Element, the Doolin Creek Habitat Enhancement Plan, and the Riverside Park Master Plan. The Director is working on thirteen major projects while running the day-to-day department operations, managing the budget, and responding to complex inquiries from the public. This Agenda Item is intended to share the status of these projects and to seek prioritization by the Council. RECOMMENDATION: Review and prioritize the major planning projects managed by the Director of Planning and Community Development. ALTERNATIVE COUNCIL POLICY OPTION: Provide alternative direction to Staff. Citizens Advised: N/A Requested by: Charley Stump, Director of Planning and Community Development Prepared by: Charley Stump, Director of Planning and Community Development Coordinated with: Candace Horsley, City Manager Attachments: 1. Status List of Major Planning Projects APPROVED: Candace Horsley, City Manager UKTAH DEPARTMENT OF PLANNTNG AND COMMUNI'TY DEVELOPMENT Planning Director Major Project Status List May 2006 UKTAH VALLEY AREA PLAN Assisting County staff with UVAP revision program as time and resources permit. Meeting and communicating regularly with County Staff. Consultant Pre-proposal conference on May ].1th. Will sit on consultant selection committee with County Staff. SPHERE OF I'NFLUENCE AMENDMENT City/County Subcommittee meeting regularly. Meeting with Annexation consultant. Discussions with City Council anticipated in June. Major portions complete. May. LAFCO MUNCI'PAL SERVI'CE REVI'EW Other components being worked on. Draft document expected in COX/MAYFI'ELD ANNEXATI'ON - BRUSH STREET TRI'ANGLE Application complete. E:[R required. Applicants discussing broader annexation approach with surrounding land owners. Discussions of Planned Development Prezoning. RCHDC ANNEXATTON - BRUSH STREET TRTANGLE Application complete. Draft ETR being prepared by Leonard Charles & Associates as part of County GPA/RZ. ORCHARD AVENUE BRI'DGE / BRUSH STREET TRI'ANGLE ETR Alternative route analysis (environmental) completed. Financial feasibility analysis being prepared by staff. To Council in June. HI'LLSI'DE ZONI'NG REV1'SI'ONS Second joint City Council/Planning Commission meeting on May l0th, DOWNTOWN AND PERKINS STREET GATEWAY FORM BASED ZONING Consultant selection process to be discussed with City Council on IVlay 17th. WATER RIGHTS AMENDMENT EIR Working closely with the City Attorney and consulting engineers. EIR being prepared by Leonard Charles & Associates. GREEN BUILDING PROGRAM Green building concepts discussed with Planning Commission in April and with the City Council in IVlay. Development of public education and incentive program underway. RECYCLING AND DIVERSION OF CONSTRUCTION DEBRIS ORDINANCE Draft ordinance prepared. Roundtable meeting with stakeholders conducted. Preliminary diversion rate figures produced by Solid Waste Authority in late April. Second roundtable meeting to be scheduled in May/.lune. SIGN ORDINANCE REVISIONS City Council discussion of Planning Commission recommended draft revisions. Council direction to enforce existing ordinance before revising regulations. Monthly enforcement reports to Council RDA HOUSING PROGRAM LlVl:[HAC membership and 20% housing set-a-side program issues resolved. Transitioning program to Economic Development Coordinator. AGENDA SUMMARY ITEM NO. 5c DATE: May 31,2006 REPORT SUBJECT: CONTINUED DISCUSSION AND CONSIDERATION OF AN ORDINANCE REGARDING CAMPAIGN REFORM- BALDWIN, RODIN Council requested to continue their discussion from the May 17, 2006 meeting on campaign reform as presented by Vice Mayor Baldwin and Councilmember Rodin (Attachment 1). Various City Campaign Finance Ordinances were provided to Council last week for review and discussion at the May 31, 2006 City Council Meeting. RECOMMENDED ACTION: Discussion and possible consideration of an ordinance regarding campaign reform. ALTERNATIVE COUNCIL POLICY OPTIONS: N/A Citizen Advised: N/A Requested by: City Council Prepared by: Sue Goodrick, Risk ManagedBudget Officer Coordinated with: Candace Horsley, City Manager Attachments: 1 - Councilmembers Baldwin and Rodin Letter- April 14, 2006 2 - City Attorney E-mail- May 8, 2006 3 - Councilmember Baldwin's E-mail- May 2, 2006 4 - Campaign Finance Reform - Policy Analysis by Lillian R. BeVier (Grace Doherty Charitable Foundation Professor) APPROVED: Candace Horsley, City Man~iger TO: UKIAH CITY COUNCIL MEMBERS FROM: PHIL BALDWIN & MARl RODIN RE: CITY CAMPAIGN REFORM ORDINANCE DATE: April 14, 2006 We are pleased to present a comprehensive comparison of 11 cities' campaign finance ordinances as well as substantial background information on .campaign finance reform in general. We hope this proves useful in considering an ordinance for Ukiah. As you will see, we have changed several elements of the proposal. The key elements in the revised proposal are the following: · A $100 limit on campaign contributions from individuals, businesses, and independent committees; Public disclosure of contributors who donate $50 or more to a campaign;' The creation of a voluntary "Fair Campaign" program wherein participants agree to a campaign spending cap of $5,000. A participant in the "Fair Campaign" program may identify himself/herself as a "Fair Campaign Candidate" in all campaign literature and advertisements, official ballot statement, 'receive space on the City website for photo and 500-word statement,.receive mention in a City news release of"Fair Campaign" candidates. Additionally, the City would pay fifty percent of the ballot statement cost for those candidates agreeing to the voluntary spending limit. · No anonymous contributions; and · City Clerk scanning of FPPc filings until City has the financing to'implement electronic filing. If you are interested in information, you might review the National Civic League's website at www.ncl.orq or the Center for Governmental Studies at http:/lwww.cqs.or.q/proiects/Politicalreform/index.html#campai.qn. For information specifically regarding how to write campaign, reform ordinances, please see http:l/www.brennancenter.orq/pro.qrams/pro.q ht manual.html. We als0 have on hand the ordinances of all eleven of the cities reviewed in the chart. We have those available upon request. At our last subcommittee meeting, we discussed a process for our discussion on Wednesday evening that would balance.the need for public inpui and council discussion with our desire to move forward promptly and efficiently. With these competing needs in mind, we propose the following: first, we briefly present the chart that compares different cities' ordinances and the elements of our proposal for Ukiah; second, we ask for public comment; and third, we as a Council discuss each element of the' following proposal in order. After briefly discussing each element, we then assess if there is agreement by at least three members for that element or some variation of it. Then we move on to the next element. Hopefully, by the time we reach the end of the proposal, we will have clear direction to give our city attorney for the crafting of a draft ordinance. Ukiah City Council · April 14, 2006 Page 1 , PURPOSEANDINTENT: 1. To avoid the exercise of undue Or improper influence, or its appearance, over elected officials by contributors to or independent supporters of political campaigns; 2. To promote integrity, honesty, and fairness in municipal election Campaigns; 3. To encourage wide citizen participation in .municipal elections; 4. To inform the public of the sources of campaign contributions and expenditures; 5. To supplement the requirements of state law with regard to the reporting of campaign contributions and expenditures; and 6. To limit the ever-increasing cost of municipal election campaigns. In view of these Purposes, the'city council finds that a voluntary Campaign spending limit'will help minimize the overall cost of municipal election' campaigns; that a $50 disclosure requirement will encourage integrity, honesty, and fairness, and that a contribution limit of $100 per individual contributor per candidate will advance the city council's goals of .preserving citizen confidence and participation in the municipal election 'process, minimize increases inthe overall cost of municipal elections, while preserving the First Amendment rights of citizens to express suppor, t for particular candidates and points of view. CAMPAIGN CONTRIBUTION LIMITS: 1, , A limit of $100 per adult or business to each candidate or recall campaign during the election cycle (described below). An election cycle is the period during which contributions may be collected. A limit of $100 per adult or business to an independent committee which directly or indirectly, receives contributions or makes expenditures or contributions for the purpose of influencing or attempting to influence the action of the voters in a municipal election for or against the nomination or election, of one or more candidates or recall (hereafter "Independent Committees") during the election cycle. Limitation of in-kind contributions or gifts to be used in campaigns to $300 for professional services and $300 for material items of any kind, based on estimated fair market value, for candidates and Independent Committees. Contributions by a person and his or her ~pouse shall be treated as separate contributions and shall not be aggregated. Contributions by unemancipated children are reputably presumed to constitute contributions by their parents and attributed either one- half to each parent or entirely to a single custodial parent. For the purposes of this ordinance, election cycles begin March 1 preceding a November election and October I preceding a June election. They end at 5 pm on the Tuesday prior to an election. This last day of the election cycle (the Tuesday prior to an election) is also the date on which all candidates must file a 3rd campaign statement. - '6. No contributions may be accepted after the 3rd campaign statement is filed. Ukiah City Council · April 14, 2006 Page 2 No carryover of campaign funds from.one election cycle to another. Leftover funds may . .be donated to a non-profit organization, the City general fund, or be reimbursed to campaign contributors on a pro rata basis. Loans--other than commercial bank loans--are considered to be regular contributions. VOLUNTARY SPENDING LIMITS: All candidates who I~ave either a minimum of $500 in their campaign.treasury or who have collected 200 signatures from registered Ukiah voters supporting their candTdacy are eligible to participate in the City of Ukiah's voluntary "Fair Campaign" program. Participants in the program must accept a voluntary campaign spending .limit of $5,000 by signing an agreement. All participants in the Fair Campaign program will receive: a. 50% of the cost of the ballot statement. b. Free inclusion of candidate photograph and up to 500-word statement displayed on the City's web site. c. Mention in a City news release within one week of election filing date of their participation in the voluntary "Fair Campaign" program. d. The option of using the designation "Fair campaign Candidate" in their campaign literature and in their ballot statement. CAMPAIGN CONTRIBUTION AND SPENDING DISCLOSURE: 1. No anonymous contributions allowed. 2. Disclosure of name, address, occupation or type of business required for donati'0ns ' between $50 and $100~. City clerk will scan all FPPC campaign filing forms so they are available for the public to review, The City will make electronic filing of all campaign statements possible as soon as it is financially feasible.. 4. These disclosure rules are to apply for all ballot measures as. well. DISCLOSURE ON MASs MAILINGS, PRINT AND RADIO ADVERTISEMENTS, AND TELEMARKETING/POLLS ,, 1. Candidates and Independent Committees taking part in the Fair Campaign program must disclose on any mass mailings, telemarketing/phone banking of more than 50 people, radio advertising, television advertising, or opinion polling that they are a "Fair Campaign Candidate". , Candidate~ and Independent Co. mmittees who decline to be part of the Fair Campaign program must disclose in mass mailings, electronic advertisements, and in telephone polling that they declined to participate in the voluntary spending limitation program. They must also disclose their five largest contributors with their occupations and whether 40% or more of contributions are from outside of Mendocino County. On written material this disclosure must be in at least 12-point font. [ The California FPPC already requires filing and public disclosure of all campaign spending and of cumulative cOntributions to either candidates or Independent Committees of $100 or more from individuals, businesses,' or Independent Committees. This disclosure applies to ballot initiatives, referenda, and .recall campaigns as well. Disclosure must include name, address, and occupation or type of business or' organization. The FPPC also requires that candidates keep an official, auditable record of the amounts, names, addresses, for all donations between $25 and $99. Ukiah City Council · April 14, 2006 Page 3 ENFORCEMENT AND PENALTIES Penalty for late submittal of FPPC filing is $500 per calendar day, or any portion of a calendar day, after the deadline, if the total budget for the campaign is' within, the $5,000 voluntary spending limit. If'the total budget for the campaign is over $5,000, the candidate will be liable for $500 per calendar day, or any portion of a calendar day, after the deadline, or an amount equal to the -total funds received (donation or loan) in the last filing period,, whichever is the greater amount. , Penalty for failing to properly or accurately report contributions and expenditures will be three times the amount he/she fails to properly report or unlawfully contributes, expends, accepts, gives or receives, or $500 per violation, whichever is greater. In addition to any other civil or criminal penalty under this ordinance, a winning candidate found legally to be in violation of this ordinance may be required to relinquish the seat worl. OTHER 1. Severability clause. (If one portion of the ordinance is found to be invalid, the whole ordinance will not be found to be invalid.) . Ukiah City Council · April 14, 2006 Page 4 ATTACHMENT 2 From: drapport [mailto:drapport@pacbell.net] Sent: Monday, May 08, 2006 11:38 AM To: Candace Horsley Subject: Baldwin email to Council members Candace - I read the email Council member Baldwin addressed to John McCowen and forwarded to all Council members prior to the last Council meeting. My understanding is that he sent the email, but there was no exchange of emails among Councilmembers, and certainly not among a majority of the Councilmembers. The City Council has asked whether sending this email violated the Brown Act. Conclusion: In my opinion, Councilmember Baldwin's one-way communication by email of his arguments did not violate the Brown Act. However, Councilmember Baldwin's email should be included in the agenda packet, when the campaign reform ordinance is considered by the City Council again. Analysis: With reference to the definitiion of meeting, the Brown Act provides in Government Code Section 54952.2, in pertinent part, as follows: (a) As used in this chapter, "meeting" includes any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains. (b) Except as authorized pursuant to Section 54953, any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited. (Emphasis added.) On its face, an email (which is a form of direct communication employing a technological device) used by one Councilmember to communicate with the other Councilmembers is not "employed by a majority of the" City Council to "develop a collective concurrence." The case law contains essentially the same prohibition. See, for example, 216 Sutter Bay Associates v. County of Sutter (1997)58 Cal. App. 4th 860,876-877, which states: To prevent evasion of the Brown Act, a series of private meetings (known as serial meetings) by which a majority of the members of a legislative body commit themselves to a decision concerning public business or engage in collective deliberation on public business would violate the open meeting requirement. (See Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal. App. 3d 95, 102 [214 Cal. Rptr. 561]; Frazer v. Dixon Unified School Dist., supra, 18 Cal. App. 4th at p. 795; see also Roberts v. City of Palmdale (1993) 5 Cal. 4th 363,376 [20 Cal. Rptr. 2d 330, 853 P.2d 496].) Roberts v. City of Palmdale (1993) 5 Cal. 4th 363, specifically rejected the idea that one-way communication from a single member of the legislative body to the other members would constitute a meeting within the meaning the Brown Act. At p. 377, the court wrote: the case law, the terms "meeting" and "session" are used interchangeably (see, e.g., Stockton Newspapers, Inc. v. Redevelopment A.qency, supra, 171 CaI.App.3d at p. 102; Sacramento Newspaper Guild, supra, 263 CaI.App.2d at p. 47); we believe the Legislature intended the same usage in section 54956.9. The Legislature's intent is best deciphered by giving words their plain meanings. ( Wells Farqo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1095 [282 CaI.Rptr. 841, 811 P.2d 1025].) "We have declined to follow the plain meaning of a statute only when it would inevitably have frustrated the manifest purposes of the legislation as a whole or led to absurd results." ( People v. Belleci (1979) 24 Cal.3d 879, 884 [157 CaI.Rptr. 503,598 P.2d 473].) (8c) Resort to a dictionary shows that the term "meeting" is defined as "an act or process of coming together;.., a gathering .... "(Webster's Third New Internat. Dict. (1981) p. 1404.)The term "session" is defined as "an actual or constructive sitting of a body (as a court, council, or legislature); also: the actual or constructive assembly of the members of such a body for the transaction of business .... "( at pp. 2076- 2077.) Both terms obviously imply collective action. We conclude that section 54956.9 was intended to apply to collective action of local governing boards and not to the passive receipt by individuals of their mail. (11) Of course the intent of the Brown Act cannot be avoided by subterfuge; a concerted plan to engage in collective deliberation on public business through a series of letters or telephone calls passing from one member of the governing body to the next would violate the open meeting requirement. (See, e.g., Stockton Newspapers, Inc. v. Redevelopment Agency, [*377] supra, 171 CaI.App.3d at p. 102; 65 Ops. CaI.Atty. Gen. 63, 65 (1982).)There was no evidence in this case, however, that there was any collective deliberation outside of the open meeting where the parcel map was discussed and ultimately granted. (Emphasis added.) For these reasons, I do not believe Councilmember Baldwin's email violated the Brown Act. I would caution Councilmembers, however, to avoid emails like this in the future, because they risk a Brown Act violation. It is very easy to hit the Reply button and commence back and forth exchanges which could result in the occurence of a meeting in violation of the Brown Act. I would also point out that under Government Code Section 54957.5(a), a document becomes a public record as soon as it is distributed to all or a majority of the City Council. Under subsection (b): "Writings that are public records under subdivision (a) and that are distributed during a public meeting shall be made available for public inspection at the meeting if prepared by the local agency or a member of its legislative body." When this matter is taken up again, Councilmember Baldwin's email should be included in the public information made available for the consideration of that item on the agenda. David J. Rapport Rapport and Marston 405 W. Perkins Street Ukiah, Ca. 95482 Tel: 707-462-6846 Fax: 707-462-4235 Alt. Fax 501-636-4538 ATTACHMENT 3 From: Phil Baldwin [mailto:felipe@pacific.net] Sent: Tuesday, Hay 02, 2006 11:02 plVl To: John McCowen Subject: Disclosure Arguments John, a few months ago you wrote to me: "Why not try to inspire us by the honesty, brilliance, logic, equity, reasonableness and public benefit of your argument?" Once again I seek to meet that standard. Here are my responses to the best arguments delivered at our last meeting against a $50 disclosure with a $100 contribution limit. These arguments are forwarded as well to the full Council to assure compliance with the Brown Act. 1. There has been major inflation since the State of California adopted the $100 disclosure level in 1974. So if that level was considered fair, progressive and enlightened in 1974, then it must be far more so today. The creation of the FPPC was to a great extent the result of the Watergate Scandal and the contribution disclosure levels were set at $100 for statewide office seekers, Senate and Assembly races, as well as major urban mayoralty races; statewide elections were already at that time in the millions of dollars. That those disclosure levels applied to Weedpatch, Weed, Woodland, Willits, and Ukiah has been incidental to their original intent which was to deal with Sacramento corruption. Of course that disclosure level remains reasonable for statewide races where each campaign is raising $30 million, but it is not reasonable in Ukiah races where the average campaign spends some $4300. 2. $100 is such a small contribution it is practically chicken feed. Virtually nobody cares about such, not the contributor, not the recipient candidate or uncontrolled committee. Real contributions will be felt by the giver and by the recipient; $95 will be felt by neither. Two points need to be made about this argument. First, 100 attendees at a Tri-Tip barbecue at $99 per ticket will raise $9900 in less than two hours and the source of that $9900 will remain unreported. That is a tremendous amount of money for Mendocino County races and any race in Ukiah. All undisclosed. Secondly, for me personally and for most Uld. a. hans a $100 contribution is a major sacrifice. For most Ukiahans it would be unimaginable. Most simply would not or could not make such a big donation. With the average household income here at roughly $35,000, $100 is a very big deal. A great many, if not most Ukiahans may not have $100 left in their bank account at the end of each month. When one claims that $100 is no big deal, that it is insignificant, he seems to be creating a distance, maybe a wide gap, between himself and the average working or retired Ukiahan often struggling financially at the end of the month. Maybe the perspective that $100 is chicken feed doesn't represent hostility to those without wealth, but it does seem insensitive. 3. MendoCino County Supervisor Kendall Smith says $100 is an insignificant contribution and one which never could have any influence on a candidate. Kendall Smith has run one time and been elected once to public office. She has held her seat for less than two years. That she should be made the authority on the subject of contribution disclosure thresholds seems ridiculous to me. But it is not difficult to grasp why she supports high financed campaigns. Before running herself she worked for Congressman Mike Thompson, one of the most well funded members of the House. After working at that level, it's obvious why $100 would seem to be nothing to Kendall Smith. Thompson's contributions come in the $1000 to $10,000 range. Such level of financing is the primary reason why our nation suffers such a dismal level of citizen participation in elections, (roughly 50% of eligible citizens in Presidential election years; it' s below 40% for State off year elections and lower than that for Ukiah and other small cities.) 4. Many who want to be involved and to contribute to certain candidates fear for their jobs and relationship with neighbors, even spouses. With a $50 disclosure people will be afraid to contribute. Under the $50 threshold chosen by San Luis Obispo and Petaluma, those dedicated to a candidate but afraid of disclosure can give $49.99 and then volunteer to work behind closed doors. In most small city campaigns -clearly including Ukiah - a $49 contribution is a hefty one, often larger than the majority of individual contributions. Those afraid of public disclosure can help in so many other ways. Campaigns can be and should be once again more about the camaraderie of volunteer work rather than money. A lower threshold will actually encourage political volunteerism. 5. The bureaucratic red tape of a $50 disclosure threshold is unfair to novice, poor, poorly educated, and slow learning candidates. Besides, it would be so time consuming it will discourage even rapid learner, highly educated candidates. The State of California already requires candidates (smart or dumb) to keep track of all contributions of $25 or more. Any contender (or her treasurer) could fill in the FPPC forms for 100 donors between $50 and $100 in less than 50 minutes. This might take a average IQ sixth grader eighty minutes at most. All jurisdictions with a $25 and a $50 disclosure which we have contacted report that this claimed inhibition is nonexistent. Petaluma ($25), San Luis Obispo ($50), Davis ($25), Cotati ($25), Mountain View ($50), and Novato ($25) have had no problem with these thresholds under $100. So, I hope you ask: why have all these cities adopted such low disclosure thresholds? Let's wonder together: All have suffered from rapid growth, questionable planning, and a simultaneous increase in developer funding of campaigns. Oh, and none can be considered radical by any stretch of the imagination. Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 2 of 29 Cato.ru (Russian) Liberty on the Web Cato Offerings Pocket Constitution Email Updates Events Podcast Cato Audio Cato Books Cato on Your PDA Cato University Friedman Prize Policy Analysis Campaign Finance "Reform" Proposals: A First Amendment Analysis by Lillian R. BeVier Lillian R. BeVier is Henry & Grace Doherty Charitable Foundation Professor and Class of 1948 Research Professor at the University of Virginia Law School. Executive Summary In the wake of recent reports of questionable campaign finance practices have come ever more draconian proposals to "reform" the campaign finance system. Those proposals pose a disturbing threat to the individual political freedom guaranteed by the Constitution. Under current precedents, none of them could survive a First Amendment challenge. In Buckley v. Valeo (1976), the Supreme Court affirmed that giving money to and spending money on political campaigns is a core First Amendment activity. Accordingly, regulations of political contributions and expenditures will not be sustained unless justified by a compelling state interest and crafted to achieve their objective by the least restrictive means. Current proposals to regulate campaign finance practices cannot survive the kind of scrutiny that the First Amendment requires. This study demonstrates that the ban on political action committees, the PAC ban fallback provisions, the "voluntary" spending limits, the restrictions on soft money, the regulation of issue advocacy, and the proposals to expand the enforcement powers for the Federal Election Commission all substantially infringe on core First Amendment freedoms, but none serves a compelling interest with the least restrictive means. And the proposal that broadcasters be required to provide free TV time to federal candidates is constitutionally insupportable. The shortcomings of current "reform" proposals are no small matter, given the First Amendment's crucial historical role in protecting our right to self-government and in sustaining liberty. For the proposals to pass constitutional muster, the First Amendment would have to be itself "amended" by judicial fiat. Introduction Since the 1996 elections, campaign finance practices have dominated the news. Reports of unpalatable fundraising strategies, such as renting out the Lincoln bedroom to major donors and using White House telephones to solicit contributions, have appeared with distressing frequency on the nightly news. The media tend to portray those actions not as straightforward individual ethical or legal lapses but as self-evidently symptomatic of the need for stringent new campaign finance "reforms." President Clinton, who claims to have played by the rules in his ATTACHMENT~ http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 3 of 29 reelection campaign, also claims to strongly favor "reform." Recently, for example, in a "stop-me-before-I-kill-again" move, he petitioned the Federal Election Commission to ban political parties from accepting the "soft-money" contributions that provided so much of the fuel for the 1996 presidential contest. A chorus of those who advocate increased regulation of the political process is always available to chant the reform mantras, and the mainstream press appears credulously willing to broadcast them: "Well-heeled [unequivocally self-serving and never public-regarding] special interests" dominate the political process; challengers and incumbents alike, consumed by the need to raise money for their campaigns, spend "most of their time.., scrounging for funds." [1] A Washington Post headline declared, "The System Has Cracked under the Weight of Cash." [2] "[F]renzied fundraising and freewheeling spending... [of] torrents of cash" now rule the day, and election contests are conducted principally via expensive ad campaigns that saturate the airwaves. [3] Money-dollars contributed to candidates, given to political parties, and spent on election campaigns-undermines the integrity of and "defeat[s] the democratic process" [4]--or so it is said. Despite the overheated rhetoric of dysfunctionality and doom, the debate about the nature of the changes that ought to be made in the present system of campaign finance regulations is often framed as though short-term political advantage were the only thing at stake. [5] Republicans, it is said, are against restricting campaign contributions and expenditures-but only because they are richer and better at raising money. Democrats, on the other hand, favor restrictions--but only because they wish to counter the perceived Republican money-raising advantage. Because Republicans control the present Congress, stringent new giving and spending regulations are thought unlikely. And finally, it is said that because the incumbents of both parties are "beneficiaries" of the present system, political reality suggests that those incumbents are unlikely to change the system in any way that might threaten their reelection. For all the rhetoric, however, the debate over campaign finance regulation raises issues that genuinely transcend the short run, issues of fundamental and permanent significance that cry out to be acknowledged. Indeed, though they come to us in the benign guise of "reform," many of the campaign finance regulations that have recently been proposed would require us to renege on a central premise of our representative democracy-the individual political freedom our Constitution guarantees. This study will examine the constitutionality of current campaign finance regulatory proposals. It will also strive to bring the stakes in the campaign finance debate into the sharpest possible focus-- to provide a full accounting of regulation's cost to political freedom so that, if they find themselves tempted to adopt a short-term fix to the campaign finance "mess," legislators will not fatally underestimate the price. The Regulatory Agenda On the agenda of today's proponents of reform are a number of http ://www.cato.org/pubs/pas/pa-282.html 5 / 18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 4 of 29 specific, often shifting legislative proposals. Rather than treat each of those proposals in detail, I will proceed in more generic terms, focusing on the broad outlines of the most frequently recurring-and thus most prominent-individual suggestions for "reform." I will consider the following proposals: · The PAC ban: Eliminate political action committees (PACs) from federal election activities by banning all expenditures by and contributions to them for purposes of influencing elections for federal office, broadly defined, except those contributions and expenditures made by political parties and their candidates. · The PAC ban fallback: If the complete ban is found unconstitutional, lower the permissible amount of PAC contributions to single candidates from the present $5,000 to $1,000 and prohibit any candidate from receiving any PAC contribution that would raise that candidate's PAC receipts above a given percentage (say, 20 percent) of applicable expenditure ceilings; ban the "bundling" of individual contributions; ban the receipt by a candidate of PAC monies that exceed 20 percent of the particular election's campaign expenditure ceilings; redefine independent expenditures so as to turn more activities into "coordinated" expenditures (thus subjecting them to the contribution limitations); and broaden the definition of "express advocacy" so as essentially to prohibit generic partisan communications of any kind (by defining express advocacy to include any "expression of support for or opposition to a specific candidate, to a specific group of candidates, or to candidates of a particular political party" and to include suggestions "to take action with respect to an election.., or to refrain from taking action"). · Spending limits and communication discounts: Impose "voluntary" spending limits for candidates in House and Senate races and prohibit spending of personal funds in excess of 10 percent of that limit; provide to candidates who agree to be bound by the limits certain amounts of free television time, plus the right to purchase additional time at reduced rates, and give them a reduced rate for mailing to state voters; limit their receipt of out-of-state contributions by requiring them to receive 60 percent of the contributions to their campaigns from individuals in their own states or districts; and prohibit candidates who do not agree to be bound by the spending limits from receiving PAC contributions, require them to pay full rates for broadcasting and postage, raise the limits on contributions to their opponents from $1,000 to $2,000, and raise the expenditure limits of their opponents by 20 percent. · Restrictions on soft money: Bar federal officeholders, candidates, and national political parties from accepting unregulated contributions; subject all election-year expenditures and disbursements by political parties, including state and local parties that "might affect the outcome of a federal election"--including those for voter registration, get-out-the-vote drives, genedc campaign activities, and any communication that identifies a federal candidate--to the full panoply of Federal Election Campaign Act (FECA) restrictions and compliance and regulatory rules. · Controls on "issue advocacy": Regulate communications that do not contain words of "express advocacy" as defined by the Supreme Court in Buckley v. Valeo (i.e., communications that do not "in express terms advocate the election or defeat of a clearly defined candidate for federal office"). [6] Define "issue advocacy" to include a broader range of communications than does "express advocacy"; regulate it by subjecting groups funding issue advocacy communications to FECA disclosure requirements and controlling the content of issue advocacy communications by requiring disclosure of funding sources and disclaimers of candidate advocacy. http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 5 of 29 Free TV: In exchange for, and as a "public service" condition of, the allocation to them of spectrum space, require broadcasters to provide substantial amounts of free air time to all candidates for federal office. Require candidates to appear in person in the free time provided to them and to speak for themselves. · Expand Federal Election Commission enforcement powers: Grant broad new enforcement powers to the Federal Election Commission, including the right to go to court to seek an injunction against potential offenders on the ground that there is a substantial likelihood that a violation is about to occur. First Amendment Analysis: General Principles The Buckley Framework To be constitutional, the proposals outlined above must not violate principles of political freedom and free political speech as protected under the First Amendment. The cornerstone of the Supreme Court's First Amendment jurisprudence in this area is Buckley. In that case the Court decided several challenges to the FECA amendments of 1974. [7] FECA was at that time Congress's most ambitious effort at election campaign reform. According to its defenders, the act was designed to equalize access to and purify the political process by ridding it of corruption and the appearance of corruption. Among other things, the plaintiffs in Buckley challenged the act's stringent limitations on the amounts of money individuals could contribute to and spend on campaigns for federal office and the act's provisions for public funding of presidential candidates who agreed to abide by spending limits during their campaigns. The Court sustained the provisions for public funding of presidential campaigns and the contribution limitations. It invalidated the expenditure limitations. In resolving the Buckley challenges, the Court correctly took as its central premises that "a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs" and that contribution and expenditure limitations "operate in an area of the most fundamental First Amendment activities." [8] Pursuant to conventional canons of First Amendment review, that meant that contribution and expenditure limitations would be subject to "strict scrutiny" by the Court and would not survive unless they were found to serve a "compelling state interest" using the "least restrictive means." Due to differences it perceived in the relative magnitudes of the First Amendment interests, the Court distinguished between limits on contributions of money to politicians or their campaigns and limits on campaign expenditures by citizens and candidates. A contribution limit, said the Court, "entails only a marginal restriction upon the contributor's ability to engage in free communication," [9] because "the transformation of contributions into political debate involves speech by someone other than the contributor." [10] Hence, such limits could presumably be evaluated using a slightly more lenient standard of review. [11] Limits on expenditures, on the other hand, "represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech." [12] Thus, whereas the Court strongly suggested that limitations on expenditures may well run afoul of the First Amendment regardless of the context or the purported justification for their http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 6 of 29 imposition, it held that limitations on contributions are constitutional if their purpose is the compelling one of preventing corruption (i.e., "the attempt to secure a political quid pro quo from current and potential officeholders") [13] or the appearance of corruption. Of particular importance to today's debate, the Court rejected equalization of political power as even a permissible, much less a compelling, justification for restrictions on either contributions or spending, observing that "the concept that government may restrict the speech of some elements in our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." [14] Buckley has proven remarkably robust and has provided the doctrinal framework for all seven of the major campaign finance cases that the Court has since decided. In each' of those cases (briefly summarized in the Appendix), the Court has remained committed to Buckley's major conclusions. That is not to say that the Buckley framework has gone unchallenged within the Court itself. [15] Still, taken as a whole, Buckley and its progeny stand foursquare for the following doctrinal generalizations. Because they represent governmentally imposed constraints on political activity, · Restrictions on political contributions and expenditures infringe on rights of speech and association· Therefore, the Court will strictly scrutinize such restrictions, even when they are directed at corporations instead of at individuals or groups. · Limits on independent expenditures by individuals and political groups are likely to be unconstitutional regardless of the context or the purported justification. · Preventing corruption or the appearance of corruption remains the "single narrow exception to the rule that limits on political activity" are contrary to the First Amendment. [161 · Since a ballot measure offers no opportunity to corrupt elected officials with either contributions or expenditures, the First Amendment probably prohibits restrictions on both contributions and expenditures in the context of ballot-measure elections: both kinds of restrictions infringe on First Amendment rights without countervailing benefit since "there is no significant state or public interest in curtailing debate and discussion of a ballot measure." · Equalization of political influence is not a permissible justification for restrictions. The Court has never wavered in its view that government may not restrict the speech of some to enhance the relative voice of others. Applying Buckley: In General How do the campaign finance regulations that are presently being debated fare when subjected to analysis in light of the Buckley framework and the First Amendment foundation upon which it rests? The first step in the calculus of constitutionality is to determine the extent to which each proposal infringes on established First Amendment rights. That step is doctrinally uncontroversial, its analytical path clearly marked, for Buckley and its progeny unequivocally establish that regulations of campaign contributions and expenditures operate upon fundamental First Amendment rights to free speech and free association. Cynically claiming that that central premise of Buckley represents nothing more than capitulation to the idea that "money talks," http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 7 of 29 advocates of regulation mock and demean the premise. In doing so, they miss the point entirely. Buckley was not written on a blank First Amendment slate. Rather, it was firmly grounded upon, and thus was the natural outgrowth of, a long line of cases that affirmed that the core principles of the First Amendment protected citizens' right to speak, to publish, and to associate for political causes, free from government interference or control. Contributing to and spending money on political campaigns-whether to advocate the election of particular candidates or to take positions with respect to particular issues--was protected in Buckley not because money talks but because the central purpose of the First Amendment is to guarantee political freedom. The amendment ensures that individual citizens may exercise that freedom by speaking, discussing, publishing, advocating, and persuading and that they may enhance their individual voices by joining together in groups, organizations, associations, and societies. The specific rights of citizens to contribute to and spend money on political campaigns are merely necessary corollaries of their more general rights to speak freely and to associate with one another to advocate causes in which they believe. Having established that regulations of campaign contributions and expenditures impinge on fundamental First Amendment rights, the Court will then apply "strict scrutiny" and sustain the regulations only if it finds that they serve a compelling government interest and use the least restrictive means to do so. The analytical task implicit in those second and third steps in the constitutional calculus is the identification and evaluation of the government interests that supposedly support regulation and the appraisal of the means deployed to serve those interests. Performing that task is not as easy as its doctrinal formulation suggests. Although the Court has clearly commanded that strict scrutiny is required, it has not always adhered to the implications of that command by engaging in rigorous examination of both proffered ends and the means chosen to achieve them. In fact, the Court has occasionally been highly deferential and credulous in its assessments of ends and means, making prediction in the present case an uncertain undertaking. Still, if the integrity of First Amendment principles is to be preserved, it is critically important that both legislators and judges take great care that rhetoric and assertion not substitute for the careful analysis that truly strict scrutiny requires. For that reason, the analysis that follows will attempt not merely to summarize but to examine skeptically the arguments and the rhetorical strategies of the advocates of regulation. Applying Buckley: Specific Proposals The PAC Ban. In Buckley, the Supreme Court held that the only legitimate and compelling government interest in restricting campaign contributions and expenditures is to prevent corruption or the appearance of corruption. And the Court defined corruption precisely and narrowly as entailing a financial quid pro quo: dollars for political favors. Despite that, advocates of the PAC ban offer justifications unrelated to preventing corruption as the Court defined it in http ://www.cato.org/pubs/pas/pa-282.html 5 / 18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 8 of 29 Buckley. Instead, such justifications as they offer are directed, in vague terms, at reforming "an unresponsive government and a political process that has grown increasingly mean-spirited"--a view reformers seem to believe is universally shared. Regarding contribution prohibitions, reformers condemn unspecified "elected officials who listen more to big money and Washington lobbyists than to their own constituents"; they decry the "influence-money culture" and claim that "our political system is rigged to benefit campaign contributors and incumbent officeholders at the great expense of citizens"; and they see an "inherent problem"--the nature of which they do not define--"with a system in which individuals and groups with an interest in government decisions can give substantial sums of money to elected officials who have the power to make those decisions." [18] At bottom, the justification they offer seems to be that special-interest PAC contributions are a dominant force in the financing of federal election campaigns, that members of Congress are dependent on them and influenced by them, that the giving of PAC money is linked to the particular PAC's legislative agenda, and that PAC money goes overwhelmingly to incumbents. Thus, they justify the PAC expenditure ban not with reference to preventing corruption but on the ground that it is a loophole-closing measure: if independent PAC expenditures continue to be permitted for "purposes of influencing any election for Federal office," they will undermine the ability of the contribution prohibitions to achieve their purpose of preventing PACs from wielding influence. Buckley and its progeny signal quite clearly that those "justifications" for the PAC contribution and expenditure ban are neither legitimate nor compelling. The rhetorical parade of horribles cited by the advocates of increased regulation simply does not amount to corruption as the Court has defined it; thus, curing the system of them is not corruption prevention. Even if ridding the political system of the influence of big money and Washington lobbyists were somehow transformed into legitimate ends of government, a total ban on PAC contributions could not survive, for it is grossly overinclusive. Eliminating all political committee activity is not narrowly tailored, nor is it the least restrictive means of ridding the system of the influence of the money culture. Unless the advocates of increased regulation truly intend to denounce all political alliances--regardless of whether they be ideological, issue driven, or public spirited--on the ground that they are all, in the very nature of things, bound to represent special interests, and unless they think that all attempts by individuals to maximize their political voices by joining together with others of like mind present an inherent problem, it is impossible to imagine how they could justify such a draconian measure as a total ban on PAC giving and spending. Cutting the heart out of the freedom of political speech and association, and conferring what would amount to a permanent monopoly on political parties, is neither necessary nor a narrowly tailored means for attaining even the ill-defined--and probably illegitimate-- goal of eliminating the influence of big money and Washington lobbyists. The PAC Ban Fallback. The fallback provision--which would lower http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 9 of 29 the permissible amount of PAC contributions from $5,000 to $1,000 per election and would go into effect if or, more accurately, when the total ban on PAC contributions was declared unconstitutional-allegedly serves the same interest as the total ban. Since it aims to reduce rather than prohibit permissible contributions, the fallback provision might appear on its face to be less problematic than the total ban. That appearance is deceptive. Although the Court stated in Buckley that contribution limits are easier to defend than expenditure limits, it held that strict scrutiny was appropriate for both. Thus, the contribution limits of the fallback provision must run the same strict scrutiny gauntlet, and their chances of surviving are slim to none. First, note again that the advocates have not claimed during the course of recent debates that the interest being served by reducing the contribution limit from $5,000 to $1,000 is that of preventing corruption in the Buckley sense. It seems quite implausible to assert that any politician would be corrupted-or even appear to be corrupted--in the quid pro quo sense by a single contribution of even $5,000. Instead, the interest that the contribution reduction would serve is, again, the diffuse one of ending the "dominance" and "influence" of PACs. Thus, the problem the fallback limitation confronts at the outset is that, even if precisely defined, it serves an interest that has never been held to be either legitimate or compelling. And second, instead of being narrowly tailored, the limitation appears quite ill-suited to serve the interest asserted for it. Indeed, it is difficult to identify any interest that would be served by making it so much more difficult than it presently is for candidates to raise money: candidates will hardly be less distracted by fundraising if they have to raise money from even greater numbers of people because of the smaller amounts that any one individual or PAC may contribute. Both the contribution ban and the fallback treat all PACs alike, as though whatever cause they espouse and how-ever great (or limited) their resources, they all pose precisely the same danger-- and the same degree of danger--of undermining the integrity of our political process. But given the enormous range and diversity of interests that PACs represent, treating them all alike makes little sense-and certainly fails the narrowly tailored, least restrictive means test. Moreover, it is important to note that even while it was sustaining the particular contribution limits in Buckley, the Court "cautioned... that if the contribution limits were too Iow, the limits could be unconstitutional." [19] Thus, contribution limits so Iow as significantly to impair the regulated party's ability to exercise First Amendment rights (as a $1,000 limit on PAC contributions would surely do) or so unreasonably below an amount that would give legitimate rise to a perception that the contributor was acquiring "undue influence" (as the $1,000 limit would surely be) are constitutionally vulnerable. The only interest served by the fallback provision's ban on the bundling of small individual contributions to PACs would be that of preventing evasion of the contribution limitation. The bundling ban, however, represents a different sort of burden on First Amendment rights than does the constitutionally doubtful contribution limitation, which it supposedly serves as a backstop. For the bundling ban directly burdens the associational rights of http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 10 of 29 individual PAC contributors. The Supreme Court recognizes that the right to associate is a "basic constitutional freedom" [20] and has stated repeatedly that "the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process." [21] Advocates of the bundling ban claim that it is necessary to forestall PACs' evading the contribution limitations. Thus, whether the ban serves a compelling state interest will depend upon whether the interest served by the contribution limitations survives review and, if so, whether the ban is narrowly tailored--whether the Court sanctions a one-size-fits-all prohibition. Since the contribution limitations are unlikely to survive review, and since the one-size-fits-all prohibition is a clumsy solution in any event, the bundling ban is likely to be even more vulnerable than the contribution limitation it serves. The fallback's prohibition of PAC contributions that raise any candidate's PAC receipts above 20 percent of campaign expenditure ceilings would also, to a large extent, stand or fall with the contribution limitations themselves, since the prohibition is defended in terms of its ability to strengthen the contribution limitations. The First Amendment burden of the 20-percent-of- expenditure limitation is more onerous than first appears, however, for after the 20 percent limit is reached the so-called limitation has the effect of a total ban. How such a limit would serve a corruption-prevention objective, moreover, is very difficult to discern. Corruption arises when large contributions are exchanged for particular political favors. If PAC contributions are not individually large enough to create a risk of corruption or its appearance, the fact that a candidate receives many of them-- even were he to receive 100 percent of his campaign funding from them-simply does not increase the risk that he will be corrupted. Thus, the 20-percentoof-expenditure limitation not only is not narrowly tailored to serve a compelling state interest in preventing corruption or its appearance but also is not tailored to serve any identifiable or legitimate interest at all. Finally, the attempt to redefine "independent expenditure"--and, in particular, to redefine "express advocacy" so as to include any and all partisan communications-runs flatly counter to the Buckley Court's explicit effort to immunize issue advocacy from regulation or restriction: "So long as persons or groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views." [22] "Voluntary" Spending Limits. The proposals for voluntary spending limits keyed to relevant voting age populations are said to serve the interest in curbing excessive and even obscene campaign spending. Spending limits will hold down the costs of running for office and thus prevent one candidate from having an excessive advantage over another by reason of spending more. The limits are also touted for their supposed ability to redress the present imbalance in favor of incumbents (who have a grossly unfair advantage in fundraising because most PAC money goes to them). http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 11 of 29 Mandatory spending limits confront an impenetrable constitutional wall. The Supreme Court said in Buckley that expenditure limits simply do not serve to prevent corruption or the appearance of corruption in the electoral process, which is the only justification that the Court has ever accepted for limiting political expression. Indeed, the Court went further. It explicitly denounced the other justifications for spending limits that proponents had offered in Buckley, namely equalizing speech resources and stemming the rising cost of political campaigns. Because it represents such an unequivocal endorsement of freedom from government as the underlying conception of the First Amendment, the Court's aversion to restricting the voices of some in order to enhance the voices of others is worth emphasizing. Moreover, because it represents such a clear and definite rejection of the paternalism of those who think they know how much is too much to spend on political campaigning, it is worth quoting the Court's confirmation that the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns .... In the free society ordained by our Constitution it is not the government, but the people-individually as citizens and candidates and collectively as associations and political committees--who must retain control over the quantity and range of debate on public issues in a political campaign. [23] It is, of course, because mandatory spending limits are so clearly unconstitutional that advocates of the proposed spending limits insist that they be voluntary. The transparent objective is to fit the limits into the safe harbor that the Buckley Court provided when it qualified its rejection of expenditure limitations by the following footnote: Congress may engage in public funding of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding. [24] For a number of reasons, all reflecting the magnitude of the benefits and burdens attached to accepting or not accepting the limits, it is pure fiction to call them voluntary. They simply do not fit the Buckley proviso. To be specific, significant benefits are promised to those who accept the voluntary limits: candidates become eligible for free and reduced-rate television time [25] and reduced mailing rates while their opponents who do not accept the voluntary limits receive neither free time nor reduced rates. Moreover, candidates who agree to voluntary contribution limits when their opponents do not get an added benefit--their contribution limits and expenditure ceilings are raised. But burdens come with the benefits as well: candidates who volunteer to comply with the spending limits must demonstrate a threshold level of support (by raising 10 percent of the limit) before becoming eligible for the benefits; they must agree to raise 60 percent of their funds from individuals who reside in their own states or districts; and they must agree to limit the use of their own resources. In addition, they cannot use their free air time for http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 12 of 29 commercials of less than 30 seconds in length. When the Court in Buckley sustained the exchange of a presidential candidate's right to make unlimited expenditures in his own behalf for the right to receive public funding, it did so because it concluded that the purpose of public funding "was not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process." [26] The purpose of the current proposals to impose voluntary spending limitations along with their accompanying burdens and benefits, however, is quite different. In the first place, the limits are not imposed in exchange for receipt of public funding and thus could not be defended as necessary to protect the integrity of a government-funded program. Second, the effect of the proposed expenditure limitations-whether they are deemed voluntary or not-will be to reduce substantially the quantity of campaign speech. Indeed, that must be their purpose, since the restrictions are explicitly motivated by the objective of reducing excessive spending. As the Eighth Circuit Court of Appeals recently noted when evaluating analogous provisions of state campaign finance restrictions, one is "hard-pressed to discern how the interests of good government could possibly be served by campaign expenditure laws that necessarily have the effect of limiting the quantity of political speech in which candidates for public office are allowed to engage." [27] The spending limitations also do not serve the posited goal of creating a level playing field between incumbents and challengers because the limitations fail to dissipate the already significant advantages of incumbency. Incumbents begin every electoral race with important advantages; equalizing the amount of money that incumbents and challengers can spend would simply make permanent the incumbent advantages that already exist. When the spending limits are combined with the proposed new restrictions on contributions and the increasingly complicated system of fundraising for challengers, they appear narrowly tailored not to level the playing field for challengers but instead to transform a challenger's initial disadvantage into a practically insurmountable barrier. That is the reason the proposals are so susceptible to the charge of being incumbent-protection measures. Limits on Soft Money. Advocates of increased regulation of campaign finance often assert that soft money is the most dangerous and destructive money in the political system today. Soft money is money contributed by individuals, corporations, unions, and the like to the national and state parties for party- building activities, voter registration and get-out-the-vote drives, and generic issue- (rather than candidate-) oriented advertising. It is not subject to contribution limitations imposed by FECA because it is not used to advocate expressly the election of any clearly identified candidate. Reformers want to ban soft money because they believe that even though it does not go to support particular candidates it nevertheless has the unseemly propensity to influence elections. Thus, it invites wholesale evasion of the contribution limits now in place. http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 13 of 29 The reformers are right, of course: soft money does influence elections. But the resort to soft-money contributions is exactly what one would expect when people are prohibited from giving more directly. Yet a ban on soft-money contributions would amount to an unprecedented restriction on political activity, one whose justification is not compelling and whose scope far exceeds what the First Amendment allows. Advocates of a soft-money ban defend it as a contribution-limitation-loophole-closing device: corporations and unions that would not otherwise be permitted to contribute to candidates' campaigns make large soft-money donations to political parties; and individuals often contribute soft money in excess of the amount they would be entitled to contribute to particular candidates. Such arguments assume, of course, that contribution limitations represent an appropriate and inviolable ceiling on the amount of money that individuals, corporations, and unions should be allowed to contribute to the political process whether or not the contribution funds speech that creates a risk of quid pro quo corruption of particular candidates. Thus, supporters of the ban make no pretense of establishing a link between soft-money contributions and the appearance or reality of candidate corruption that alone provides a constitutional predicate for regulation. [25] Calling the soft-money contribution ban a contribution-limit- loophole closure does not change the basic fact, however: soft money does not fund speech that "in express terms advocate[s] the election or defeat of a clearly identified candidate for federal office," which is the only kind of speech for which the Court has held that contributions may be constitutionally restricted. [29] To regulate contributions for speech that is other than express advocacy of the election of particular candidates, the Court said, would create intractable vagueness problems and cause unacceptable chilling of protected, issue-oriented political speech. It would, in other words, thwart speech debating the merits of government policies and addressing the public issues that are at stake in an election-the very kind of speech that the First Amendment was written primarily to protect. Thus, because a ban on soft money aims directly and indiscriminately at core political activity, and because its proponents have not made their case that soft-money contributions pose a danger of quid pro quo corruption, the ban could not pass muster as a finely tuned means of achieving a compelling state interest. Also bearing on the First Amendment implications of a ban on soft money is the Court's recent decision in Colorado Repubfican Federal Campaign Committee v. FEC, which held limits on independent expenditures by political parties-expenditures not coordinated with any candidate--to be unconstitutional. The independent expression of a political party's views, the Court affirmed, is core First Amendment activity, and limits on it cannot be justified with reference to a corruption-prevention rationale. Indeed, although the majority of the Court did not reach or address the issue, four justices expressed the further view that, given the practical identity of interests between party and candidate during an election, the corruption-prevention rationale http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 14 of 29 for sustaining limitations on contributions did not support any limits on party spending, whether coordinated with the candidate or not. Although present law makes coordinated spending illegal, Justice Thomas pointedly questioned its rationale: "What could it mean for a party to 'corrupt' its candidate or to exercise 'coercive' influence over him?" [30] If the Court were to decide, when squarely facing the issue, that party spending on political activity cannot be limited, whether or not coordinated, then contributions to the party to make those expenditures would likewise seem to be protected from regulation. In sum, from a constitutional perspective, restrictions on soft money are among the least defensible proposals for campaign finance reform. Indeed, arguments purporting to support such restrictions serve only to raise questions about limits on direct contributions. Issue Advocacy. Insofar as they entail broadening the reach of campaign speech regulation to include speech that does not "in express terms advocate the election or defeat of a clearly identified candidate for federal office," proposals to control issue advocacy are constitutionally infirm for the same reason that the soft-money ban is constitutionally infirm: they would regulate-and thus unacceptably chill--core political speech about the merits of policies and the proper resolution of public issues without a corruption-prevention rationale for doing so. Proponents of controls on issue advocacy claim that controls are necessary to prevent the acquisition of undue influence by advocates of particular issues. There is, however, no constitutional warrant or means for calibrating what constitutes "undue" influence, for the Constitution does not permit, nor does it provide, a metric for discerning how much influence is enough. We have no constitutional Goldilocks to say when the amount of influence possessed by advocates of particular positions is "just right." The inherent payoff for political participation in a democracy is the acquisition of influence, and it is the function of the First Amendment to protect efforts to acquire it, not to limit or constrain them. [31] The constitutionality of proposals for regulation, insofar as they require disclosure by groups engaging in issue advocacy, is seriously jeopardized by Mclntyre v. Ohio Elections Commission. [32] In Mclntyre, the Court had before it an Ohio statute that prohibited the distribution of anonymous campaign literature. Because the statute was a regulation of core political speech, the Court subjected it to strict scrutiny; and, because the statute did not serve a compelling state interest using the least restrictive means, the Court proceeded to strike it down. Unpersuaded that the ban was justified by Ohio's asserted interests either in preventing fraudulent and libelous statements or in providing voters with relevant information, the Court also could find no support for the statute in either First National Bank of Boston v. Bellotti [33] or in arguably relevant portions of Buckley. In Bellotti, the Court invalidated a state law that prohibited corporations from spending money on speech designed to influence the outcome of referenda. In the course of doing so, the Court commented in dicta on the possibility that a requirement that the sponsor of corporate advertising be identified might be thought to be permissible on account of its "prophylactic effect." http ://www.cato. org/pubs/pas/pa-282.html 5 / 18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 15 of 29 The Mclntyre Court realized that the context of the Bellotti statement--expenditures by corporations--was not the same as the context of the Ohio statute, which purported to regulate independent expenditures by an individual. And whereas in Buckley the Court sustained mandatory reporting of independent expenditures in excess of a threshold level, the justices noted in Mclntyre that the independent expenditures to which the disclosure requirement applied had been construed to mean only those expenditures that expressly advocate the election or defeat of a clearly identified candidate. [34] Thus, in Buckley there was a corruption-prevention rationale to support the expenditure- disclosure requirement. Such a rationale would lend only the most tenuous possible support to required disclosures of issue advocacy. Mclntyre does not purport completely to foreclose disclosure or reporting requirements with respect to independent expenditures. It does, however, reaffirm the Court's commitment to scrutinize strictly such requirements in order to preserve the right to engage in issue advocacy unencumbered by regulations that burden speech without producing a reciprocal benefit in corruption prevention. Free TV. The proposals to require broadcasters to provide "free" TV time to federal candidates do not come under the Buckley rubric. Instead, insofar as they apply to broadcasters, their constitutionality is a function of the unique First Amendment jurisprudence that the Court has developed for the electronic media. That jurisprudence had its beginnings in Red Lion Broadcasting Co. v..FCC, [35] in which the Court, pointing to "spectrum scarcity," upheld the Federal Communication Commission's rule that those attacked editorially by the broadcast media had a right of reply. Thus it denied the broadcasters' First Amendment claim that such an obligation impinged on their editorial freedom. It is clear beyond peradventure that Congress could not constitutionally compel the print media to provide free space to similarly situated political candidates. [36] Red Lion sanctioned a different set of First Amendment rules for the broadcast media because the Court was persuaded that the scarcity of broadcast spectrum warranted content regulation of spectrum licensees' programming in the interests of diversity and fairness. Many commentators questioned the rationality of the spectrum scarcity argument even at the time Red Lion was decided. [37] Regardless of whether it provided a plausible rationale at that time, however, spectrum scarcity has been rendered obsolete by the advent of cable and other technological advances. And courts, too, have increasingly criticized the argument as a justification for government control of the content of broadcast programming. [38] There is no longer a factual foundation for the argument that spectrum scarcity entitles the government, in the public interest, to control the content of broadcast speech. Without the spectrum scarcity rationale to support it, the attempt to control broadcasters' speech by requiring them to provide free TV time to candidates for office would seem doomed to constitutional failure. Even were the http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 16 of 29 spectrum scarcity rationale still viable, the Court has never held that Red Lion sanctioned "government regulations that impose specifically defined affirmative programming requirements on broadcasters." [39] The Court has been suspicious of any government action that "requires the utterance of a particular message favored by the Government," and it has been alert to guard against the "risk that Government seeks not to advance a legitimate regulatory goal but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion." [4o] With respect to all speakers except the broadcast media, and most certainly with respect to candidates for political office, it goes almost without saying that any attempt by the government to dictate the format or control the content of speech is constitutionally suspect. In addition to commanding broadcasters to donate time so that political candidates may speak, the free TV proposals contemplate requiring candidates themselves, and not any surrogates, to speak in the donated time, thus dictating the format of their speech; and several suggestions have been made that the candidates must not engage in "negative" campaigning if they are to receive the free time, thus controlling the content of their entire speech. Those highly questionable aspects of the free TV proposals cannot be defended on the ground that the government, in pursuit of the public interest, is subsidizing certain candidate speech--thus conditioning receipt of its funds on the candidates' agreement to respect the contours of the government program. Such was the rationale that underlay the Court's holding in Rust v. Sullivan, [41] where the Department of Health and Human Services' "gag rule" prohibited recipients of federal family planning funds from providing abortion information. The Rust rationale could not support the format and content controls envisaged by the free TV proponents for the simple reason that the speech would be subsidized not by the taxpayers but by the broadcasters. [42] In fact, what the free TV time proposals contemplate seems to be a bold end-run around traditional and well-established First Amendment principles. The broadcasters have no First Amendment right to resist compliance, proponents say, because spectrum scarcity permits the government to regulate their editorial judgments in the public interest. And the candidates have no First Amendment right to resist compliance with format or content controls because they are being permitted to speak for free. As the analysis above has demonstrated, the First Amendment stands as a more effective defense of freedom than the proponents imagine, and the Supreme Court would surely have little difficulty detecting the constitutional shell game that the free TV proposals epitomize. Expanded Federal Election Commission Enforcement Powers. Many of the proposals for increased regulation of campaign finance envision a hugely enlarged enforcement role for the already overburdened and generally ineffectual Federal Election Commission. [43] The wisdom of imposing such a monumental burden on any federal agency, much less on this particular one, is questionable; but whether the enforcement mechanisms that Congress devises for implementing particular regulatory http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 17 of 29 strategies are feasible or not does not usually raise First Amendment issues. One enforcement proposal does raise such issues, how-ever: the proposal to give the FEC power to seek to enjoin potential offenders on the ground that "there is a substantial likelihood that a violation is about to occur." The proposal is vulnerable to two different First Amendment challenges. The first involves vagueness. Many of the proposed substantive violations are themselves vague, and the "substantial likelihood" criterion for FEC action is also vague. The threat of FEC action based on either vague element of that ground would not only have an unacceptable chilling effect on many activities that are not violations; more significantly, it would also invite precisely the kind of arbitrary exercise of government power that the vagueness doctrine is designed to forestall. [44] The second First Amendment challenge to giving the FEC power to enjoin campaign activity involves prior restraint on speech. Prior restraints are the "most serious and the least tolerable infringement of First Amendment rights," [45] and they will not be sustained unless the Court is convinced that "the gravity of the evil, discounted by its probability, justifies such invasion of free speech as is necessary to avoid the danger." [46] It seems unlikely that the Court would hold that the mere possibility of violating campaign finance regulations poses the kind of threat to the national interest that would justify imposing prior restraints on speech, especially since the kind of speech put at risk by such an injunction-political speech during the course of an election campaign--lies at the very core of the First Amendment. The First Amendment According to the Regulators When one looks at Supreme Court precedents--in particular at Buckley and its progeny--the First Amendment case against current proposals for more stringent campaign finance regulations appears impregnable. But, given the vehemence and surety with which those proposals are advocated, perhaps it is well to look more closely both at the precedents for Buckley and related cases and at the conception of the First Amendment the reformers embrace and how that conception differs from the First Amendment that is presently embodied not only in our democratic traditions but in our supreme law. An important question to ask is to what extent the precedents-- which stand as barriers to so-called reform efforts--are rooted in traditions and ideas of freedom that we wish to preserve. Buckley may be the cornerstone of the Supreme Court's modern campaign finance jurisprudence, but it is important to appreciate that it was not a novel, isolated case. Rather, it was laid upon an already existing, solidly constructed First Amendment foundation. Thus, to appreciate its true significance, and understand what is at stake in the present debate, it helps to see Buckley as sustaining a First Amendment tradition that was already deeply embedded at the time the case was decided. Buckley was one in a long and continuing line of cases that have articulated and upheld, in a wide variety of contexts, the principles of free political speech and individual political freedom that lie at the very heart of the First http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 18 of 29 Amendment. The Constitution is the fundamental charter of our representative democracy, the embodiment of our right to self-government and of all our corollary liberties. The First Amendment's specification that "Congress shall make no law.., abridging freedom of speech or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" plays a crucial role in determining the character of our democracy. "A major purpose of [the] Amendment was to protect the free discussion of governmental affairs." [47] Accordingly, it guarantees that individual citizens may speak, publish, and join together in groups to engage in political activity to try to achieve the substantive ends they deem desirable. [48] They may attempt to persuade others and to acquire political influence, and the government may not interfere with, punish, repress, or otherwise impede their efforts. [49] That conception of the First Amendment is fleshed out in Supreme Court opinions that both pre- and postdate Buckley. Those opinions make it clear that implicit in the First Amendment guarantee of freedom from government control over what citizens may say and with whom they may associate as participants in the political process is the important corollary that citizens may freely contribute or expend the resources at their command-otheir intellect, their time, their talent, their organizational or rhetorical skills, their money-to or on political activity. [50] The government may not interfere in their efforts to persuade their fellow citizens of the merits of particular proposals or of particular candidates; [51] nor may it disrupt the free communication of their views, [52] nor penalize them for granting or withholding their support from elected officials on the basis of the positions those officials espouse. [53] Government may neither prescribe an official orthodoxy, [54] require the affirmation of particular beliefs, [55] nor compel citizens to support causes or political activities with which they disagree. [56] Government may neither punish its critics nor impose unnecessary burdens on their political activity. [57] Those are the bedrock principles of political freedom with which Buckley and its progeny are consistent; those are the principles that impelled the Buckley Court's conclusion that government may not restrict independent political expenditures and may limit political campaign contributions only in the name of preventing corruption. To remain faithful to those principles, one must be vigilant to detect the costs to freedom lurking in reform proposals that come dressed as benign efforts to achieve a healthy politics. In the course of explaining why the First Amendment should be amended, House Minority Leader Richard Gephardt (D-Mo.) baldly stated that formal amendment was needed so that Congress could enact new and stringent campaign finance restrictions because "[w]hat we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. You can't have both." [58] That breathtaking assertion performs a real service. It alerts us to the fact that, in the eyes of advocates of reform, freedom as we know it cannot survive an ambitious program of campaign finance regulations. Of equal importance, it begs the all-important questions about what a "healthy democracy" would look like and http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 19 of 29 why a healthy democracy is not by definition one, like ours at present, in which freedom of speech reigns. Nevertheless, the regulatory proposals that have recently been placed on the legislative agenda do claim to embody a First Amendment vision of sorts. Based not on legal precedent but crafted by legal scholars and judges who adumbrated it in the pages of scholarly journals and treatises, the conception of the First Amendment that animates proposals for campaign finance regulation bears almost no resemblance to the freedom-oriented conception that actual First Amendment doctrine embodies. Indeed, it distorts our traditional understandings of what the very words of the amendment mean and imparts an extraordinary and unprecedented significance to the phrase "freedom of speech." Precisely because it animates the present reform agenda, however, it warrants a brief summary. The conception of the First Amendment that underlies the regulatory agenda of proponents of campaign finance reform is best understood as a rejection of the traditional understanding that freedom of speech necessarily implies individual political liberty and the absence of substantive or qualitative regulation of political debate. Proponents of reform do not perceive that they utter a contradiction when they assert that freedom of speech can be "enhanced," [59] its purposes "furthered, not abridged," [60] by legislation that regulates and restricts political speech. That is because the proponents of regulation believe that freedom is a quality of political life that can be regulated into existence rather than an aspect of democracy that government regulation necessarily and by definition destroys. They think that the guarantee of freedom of speech is in fact a grant of power to, rather than a withholding of power from, the government. With such power, government can control the content of political debate and fix the political process so that "political reason-giving" will prevail. Political influence will be distributed equally among groups so that "people who are able to organize themselves in such a way as to spend large amounts of cash [will] not [be] able to influence politics more than people who are not similarly able." [61] Then money will no longer play a role in our politics. The regulators appear to distrust deeply the American people. They unselfconsciously express the concern that "completely unregulated [i.e., free] political campaigns will degenerate in such a way that the electorate would be divested of its power to make a reasoned choice among the candidates." [62] In other words, they believe that the American people cannot be trusted with the choices and political responsibilities entailed in a free political system; instead, the government must regulate the political process in order to help the people to make appropriate decisions. In the First Amendment context, three aspects of the regulators' conception deserve particular emphasis. The first has already been mentioned: the regulators' conception perverts the meaning of the word "freedom." Second, while decrying the polluting effect of wealth on the democratic process and celebrating spending and contribution restrictions purporting to keep the voices of individual citizens http ://www. cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 20 of 29 from being drowned out, reformers exempt the press from their reform proposals. In the recent debate, of course, the press has largely bemoaned the vices of the current system, and "its myth- making has been especially important in the shaping of mass opinion about reform." [63] Simply by virtue of their ability to influence the public agenda, the media distort debate, and the distortion of the political process that results from media treatment of particular candidates or issues is likely to be significant. [64] The Supreme Court has explicitly eschewed defining the rights of the press more broadly than speech rights of ordinary citizens. [65] Yet under the reformers' conception of the First Amendment, the media and media corporations enjoy privileges not enjoyed by ordinary citizens. The third noteworthy aspect of the reformers' conception of the First Amendment is that the agenda that conception is used to promote is neither premised on empirical analysis, nor derived from established postulates, nor defended in terms of predictions about testable results. Rather, it rests on pejorative and highly charged rhetoric, is formulated in ill-defined but evocative terms, and is defended with extravagant claims about benign effects. Yet upon analysis, the picture the regulators paint-both of political reality and of the goals of reform-is so vague that it begs all the important questions. Thus, when the late Judge Skelly Wright, long in the reform camp, surveyed the political process, he was dismayed to find "the polluting effect of money in election campaigns." He worried that "[c]oncentrated wealth.., threaten[ed] to distort political campaigns and referenda," and he announced that "[t]he voices of individual citizens are being drowned out" by the "unholy alliance of big spending, special interests, and election victory." [66] Similarly, Professor Cass Sunstein of the University of Chicago more recently asserted that "[m]any people think that the present system of campaign financing distorts the system of free expression, by allowing people with wealth to drown out people without it .... [C]ampaign finance laws might be thought to promote the purpose of the system of free expression, which is to ensure a well-functioning deliberative process among political equals." [67] What do all those words mean? What does the "pure political process"--the one that is being "polluted"--actually look like? How rich are "people with wealth"? How poor are "people without it"? Apart from one person, one vote, what does it mean to be a "political equal"? If it means that one cannot legitimately attempt to acquire any more political influence than anyone else has, what point is there in participating in even a "well-functioning deliberative process"? And why isn't the individual political freedom that is guaranteed by present First Amendment doctrine the best means of securing a "well-functioning" democracy? The reason questions like those are important is that the Supreme Court engages in strict scrutiny of legislation that restricts campaign giving and spending. That requires the Court to analyze carefully the asserted relationships between ends and means--a process that can hardly go forward when the ends of the legislation cannot be precisely defined and the means can be http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 21 of 29 rhetorically invoked but not actually spelled out. Moreover, since campaign finance reforms have so often turned out to have unintended-indeed perverse-consequences for the political process, and since past reforms, far from having leveled the political playing field, have only entrenched incumbents, it appears doubly important that the goals of proposed new regulations be precisely specified and that the means chosen to achieve them be persuasively shown to be well targeted and genuinely likely to hit their mark. Conclusion · In conclusion, current proposals for new regulation of federal election campaign finance practices are constitutionally indefensible. In their general conception, they are nothing short of a practically complete rejection of the individual and associational rights of expression and political participation that the First Amendment guarantees. In their specifics, the governmental interests they claim to serve are neither compelling nor even legitimate. And the means they deploy are neither the least restrictive nor finely tailored. If they were to be enacted, and were challenged in court and subjected to genuinely strict scrutiny, none of the proposed regulations could survive review. They could survive only if the Supreme Court decided to amend the First Amendment by judicial fiat. Appendix: Buckley's Progeny Bellotti, widely known as the "corporate speech" case, invalidated a Massachusetts law that prohibited banks and business corporations from making expenditures to influence the vote on ballot referenda that did not materially affect their business, property, or assets. The Court strictly scrutinized the state interests asserted in behalf of the statute and the relationship between those interests and the spending limitations alleged to be the means of securing them and rather easily concluded that there was an insufficient means-end relationship to justify the limitations. Sustaining FEC limits on the amount of money that an unincorporated association is permitted to give to a multicandidate political committee, the Court in California Medical Association v. Federal Election Commission engaged in lenient review. Contributions are "speech by proxy," the Court declared, so limiting them did not "restrict the ability of individuals to engage in protected political advocacy." [68] Insisting that "there is no significant state or public interest in curtailing debate and discussion of a ballot measure," the Court in Citizens against Rent Control v. City of Berkeley [69] strictly scrutinized a limitation on contributions to committees formed to support or oppose ballot measures. It invalidated the limitation. Federal Election Commission v. National Right to Work Committee was a challenge to a section of FECA that limited the National Right to Work Committee to solicitation of "members." Declaring that it would not "second-guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared," [70] the Court narrowly construed the http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 22 of 29 section and, as so construed, sustained it against a First Amendment challenge. But in the next case, Federal Election Commission v. National Conservative Political Action Committee, [71] the Court reasserted its intention and authority strictly to scrutinize corruption- prevention justifications, at least when they were offered in support of limitations on expenditures. The decision invalidated § 9012(f) of the Presidential Election Campaign Fund Act, which prohibited political committees from making independent expenditures in excess of $1,000 to support the election of a presidential candidate who had opted to receive public funding. "When the First Amendment is involved," then-Justice Rehnquist said, a "rigorous" standard of review is called for and deference to a legislative judgment is appropriate only "where the evil of potential corruption had long been recognized." [72] Federal Election Commission v. Massachusetts Citizens for Life [73] was the next major campaign finance reform case. Massachusetts Citizens for Life, a nonprofit, nonstock corporation organized to "foster respect for human life and to defend the right to life of all human beings.., through.., political.., activities," violated FECA restrictions on independent spending by corporations when it financed a special edition of its newsletter in which it identified and advocated the election of "pro-life" candidates. The Court held, however, that as applied to MCFL's expenditure in this case FECA was unconstitutional. First, it burdened the right of the organization to make independent expenditures--"expression at the core of our electoral process and of the First Amendment freedoms." [74] Second, because "it was formed to disseminate political ideas, not to amass capital," [75] MCFL did not pose a threat of "unfair deployment of wealth for political purposes," nor did it "pose [a] danger of corruption." [76] Thus the "concerns underlying the regulation of corporate political activity are simply absent with regard to MCFL." [77.] The commission's argument that it needed a broad prophylactic rule like the one the Court had sustained in National Right to Work Committee did not persuade the Court. National Right to Work Committee involved restrictions on solicitation for a political committee that made contributions to candidates, whereas the regulation at issue in MCFL was a restriction on independent expenditures; moreover, the administrative convenience of a bright-line rule is of insufficient weight to count as a compelling interest in treating two unlike entities--business corporations and groups like MCFL--alike. The particular restrictions on independent expenditures at issue in MCFL were held unconstitutional. On the way to reaching that result, however, the Court appeared to suggest that if MCFL had been an "ordinary" corporation-one that posed a threat of corruption by "unfair deployment of wealth for political purposes" instead of one formed for the particular purpose of engaging in political advocacy-the case might have come out differently. That suggestion bore fruit in Austin v. Michigan Chamber of Commerce, [78] in which the Court sustained a state law prohibiting the use of corporate treasury funds to make independent expenditures in support of or in opposition to http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 23 of 29 candidates in elections for state office. The state defended the expenditure prohibition on the ground that "the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures to avoid corruption or the appearance of corruption." Justice Marshall's majority opinion upholding the restriction accepted that formulation of the corruption-prevention rationale and in doing so seemingly embraced a conception of legislative power to define and prevent "corruption" different from, more expansive than, and much less precise than that which the Buckley court had endorsed. Buckley and its progeny had limited legislative power to define corruption by focusing on corruption's deleterious effect on the integrity of elected officials. Corruption that legislatures may prevent occurs only when "[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors." [79] The Austin opinion implied that legislatures could choose to define "corruption" to include imprecisely defined untoward effects that spending might have not just on the behavior of elected officials but also on the electoral process itself. [80] Although it may signal a departure from Buckley's limiting principles, the precise extent to which Austin undermines Buckley's constraints on legislative power to define corruption remains unclear for at least two reasons. First, the Austin Court made much of the fact that the restriction at issue there was imposed on corporate expenditure of treasury funds, thus hinting that had the prohibition applied to independent expenditures by individuals, or even by separate segregated corporate political action committees, the result would have been different and the prohibition would have been struck down. Second, Justice Marshall's opinion is obscure about the meaning it ascribes to the term "corruption." Although the opinion is larded with pejorative and evocative references to the "influence of political war chests" [81] and the "corrosive and distorting effects of immense aggregations of wealth," [82] it does not describe a normative baseline of legitimacy that would permit a disinterested observer to detect a genuine threat of "corruption" in any particular campaign finance practice. The most the opinion does in that regard is to suggest that the distortion that is a permissible target of the legislature's concern stems from the fact that "the resources in the treasury of a business corporation.., are not an indication of popular support for the corporation's political ideas." [83] Unfortunately, the opinion fails to explain the First Amendment principle that gives that fact the power to transform the most highly protected category of core political speech into an activity subject to complete legislative proscription. The Supreme Court's most recent pronouncement on the constitutionality of campaign finance regulations came in the 1996 case of Colorado Republican Federal Campaign Committee, in which the Court held seven to two that independent expenditures by political parties cannot constitutionally be limited by Congress. Two justices, Stevens and Ginsburg, dissented. They signaled that they were prepared to retreat from Buckley; they would have http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 24 of 29 held that any spending by a political party represents a contribution to a candidate and can accordingly be limited, and they were prepared to defer to Congress's judgment that measures to level the political playing field were necessary and that there was too much spending on political campaigns. The other justices stayed well within the Buckley framework, and four of them would have gone further to safeguard the First Amendment than did Justice Breyer's opinion for the Court. Justice Kennedy, for example, got the support of Chief Justice Rehnquist and Justice Scalia for his position that spending by political parties, even if it is coordinated with candidates, cannot be restricted pursuant to the First Amendment because to restrict party spending is to stifle what parties exist to do. Justice Thomas, in a strongly argued opinion, endorsed abandoning Buckley's dichotomy between contributions and expenditures and advocated treating contribution and expenditure limitations the same for First Amendment purposes, subjecting both to strict scrutiny and not permitting broad prophylactic corruption- preventing measures. Notes [1]. John V. Lindsay, "Free TV for Political Candidates? Yes, to Cleanse the System," New York Daily News, February 20, 1996. [2]. Ruth Marcus and Charles R. Babcock, "The System Cracks under the Weight of Cash: Candidates, Parties and Outside Interests Dropped a Record $2.7 Billion," Washington Post, February 9, 1997, p. Al. [3]. Ibid., pp. 20-21. [4]. Frank J. Sorauf, "Politics, Experience, and the First Amendment: The Case of American Campaign Finance," Columbia Law Review 94 (1994): 1350 (citing the amicus brief of Common Cause that was filed in Buckley v. Valeo). [5]. Helen Dewar and Guy Gugliotta, "In Campaign Finance, One Party's 'Level Playing Field' Is Another's Shaky Ground," Washington Post, April 7, 1997, p. A6. [6]. Buckley v. Valeo, 424 U.S. 1,44-45 (1976) (per curiam). [7]. Pub. L. no. 93-443, 88 Stat. 1263 (1974). [8]. Buckley at 14 (quoting Mills v. Alabama, 384 U.S. 214,218 (1966)). [9]. Ibid. at 20. [10]. Ibid. at 21. The different treatment accorded to contributions and expenditures has been subjected to scathing criticism both on and off the Court, most recently in Colorado Republican Federal Campaign Committee v. Federal Election Commission, 116 S. Ct. 2309, 2325 (1996) (Thomas, J., concurring in the judgement and dissenting in part). [11]. Buckley at 25 (Contribution limitations may be sustained if http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 25 of 29 the state demonstrates a sufficiently important interest and deploys means closely drawn to avoid unnecessary abridgment). [12]. Ibid. at 19. [13]. Ibid. at 26. [14]. Ibid. at 48-49. [15]. The Appendix to this study contains a more detailed analysis of how the cases decided since Buckley have implemented the Buckley framework. [16]. Citizens against Rent Control v. Berkeley, 454 U.S. 290, 296 (1981). [17]. Ibid. at 299. [18]. Ann McBride, president of Common Cause, Testimony before the Senate Rules Committee, February 1, 1996. See also, to the same effect, Joan Claybrook, president of Public Citizen, Testimony before the Senate Rules Committee; and Becky Cain, president of the League of Women Voters, Testimony before the Senate Committee on Rules and Administration, March 13, 1996. [19]. Carver v. Nixon, 72 F.3d 633, 637 (1995) (citing Buckley at 30). [20]. Kusper v. Pontikes, 414 U.S. 51, 57 (1973). [21 ]. Citizens against Rent Control at 294. [22]. Buckley at 45. [23]. Ibid. at 57. [24]. Ibid. at 57n. 65. [25]. "Free" in the sense of no cost to them, but not free in the sense of "costless." The cost would be borne by the broadcasters. [26]. Buckley at 92-93. [27]. Shrink Missouri Government PAC v. Maupin, 71 F.3d 1422, 1426 (8th Cir. 1995). [28]. People who favor increased regulation indulge in a rhetorical strategy that implicitly equates big money with corruption and undue influence. It is thus important to recall that seeking to influence policy is what political activity--and free speech--is all about. We have no metric to tell us when influence is undue. And the Court has squarely held that only activities that create a danger of quid pro quo corruption can be constitutionally regulated. [29]. Buckley at 44-45. [30]. Colorado Republican Federal Campaign Committee at 2330- 31 (Thomas, J., concurring in the judgment and dissenting in part). [31]. See Douglas Johnson and Mike Beard, "'Campaign Reform': Let's Not Give Politicians the Power to Decide What We Can Say about Them," Cato Institute Briefing Paper no. 31, July 4, 1997. http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 26 of 29 [32]. Mclntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). [33]. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). [34]. Mclntyre at 445. [35]. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). [36]. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). [37]. See, for example, David Lange, "The Role of Access Doctrine in the Regulation of the Mass Media: A Critical Review and Assessment," North Carolina Law Review 52 (1973): 1. See also Scot Powe, "Or of the [Broadcast] Press," Texas Law Review 55 (1976): 39. [38]. See, for example, Turner Broadcasting System Inc. v. FCC, 512 U.S., 622,637-38 (1996) (noting that both courts and commentators have questioned the validity of the scarcity rationale for disparate treatment of broadcast and print media); Telecommunications Research & Action Center & Media Access Project v. FCC, 801 F.2d 501 (DC Cir. 1986). [39]. Rodney A. Smolla, "The Culture of Regulation," CommLaw Conspectus 5 (1997): 193, 199. [40]. Turner Broadcasting at 641. [41]. Rust v. Sullivan, 500 U.S. 173 (1991). [42]. Cf. CBS, Inc. v. FCC, 453 U.S. 367 (1981), in which the Supreme Court sustained the FCC's reading of § 312(a)(7) of the Communications Act of 1943, to the effect that the section created an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations for individual candidates seeking federal office. CBS v. FCC provides no comfort to the proponents of free TV, however, since § 312(a)(7) required only that networks provide access for which candidates were willing and had offered to pay. [43]. Benjamin Weiser and Bill McAIlister, "The Little Agency That Can't: Election Law Enforcer Is Weak by Design, Marginalized by Division," Washington Post, February 12, 1997,p. Al. [44]. See, for example, Smith v. Goguen, 415 U.S. 566, 572-73 (1974) (The vagueness doctrine "requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.' Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.") (Citation omitted.) [45]. Nebraska Press Association v. Stuart, 427 U.S. 539(1976). See also New York Times Co. v. U.S., 403 U.S. 713 (1971) ("Any system of prior restraint of expression comes to this Court bearing a heavy presumption against its constitutional validity.") http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 27 of 29 [46]. Nebraska Press Association at 561. (Citations omitted). [47]. Mills v. Alabama, 384 U.S. 213, 218 (1966). [48]. NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama, 357 U.S. 449 (1958). [49]. Hague v. CIO, 307 U.S. 496 (1939). [50]. Meyer v. Grant, 496 U.S. 414 (1988). [51]. Pickering v. Board of Education, 391 U.S. 563 (1968). [52]. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). [53]. E/rod v. Bums, 427 U.S. 347 (1976). [54]. West Virginia Board of Education v. Bamette, 319 U.S. 624 (1943). [55]. Wooley v. Maynard, 430 U.S. 705 (1977). [56]. Communication Workers of America v. Beck, 487 U.S. 735 (1988); Abood v. Detroit Board of Education, 431 U.S. 209 (1977). [57]. Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). [58]. Quoted in Nancy Gibbs, "The Wake-Up Call: Clinton Makes Serious Noises about Campaign Reform, But That May Not Be Enough to Change a Cozy System That Loves Special Interest Money," Time, February 3, 1997, p. 22. [59]. Laurence H. Tribe, American Constitutional Law, 1st ed. (Mineola, N.Y.: Foundation Press, 1978), § 13-27, pp. 802-3. [60]. Daniel Hays Lowenstein, "Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory, and the First Amendment," UCLA Law Review 29 (1982): 581-82. [61]. Cass R. Sunstein, "Political Equality and Unintended Consequences," Columbia Law Review 94 (1994): 1392. [62]. Tribe, § 13-26, p. 798. [63]. Frank J. Sorauf, "Politics, Experience, and the First Amendment: The Case of American Campaign Finance," Columbia Law Review 94 (1994): 1356. [64]. Cf. Sanford Levinson, "Electoral Regulation: Some Comments," Hofstra Law Review 18 (1989): 412 ("1 am unpersuaded by any analysis that expresses justified worry about the impact of money on the behavior of public officials and, at the same time, wholly ignores the power of the media to influence these same public officials in part through the media's ability to structure public consciousness.") [65]. Cf. Peri v. Procunier, 417 U.S. 817, 834 (1974) ("The Constitution does not.., require government to accord the press special access to information not shared by members of the public generally.") [66]. Skelly Wright, "Money and the Pollution of Politics: Is the http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 28 of 29 First Amendment an Obstacle to Political Equality?" Columbia Law Review82 (1982): 614, 622. [67]. Cass R. Sunstein, The Partial Constitution (Cambridge, Mass.: Harvard University Press, 1993), p. 84. [68]. California Medical Association v. Federal Election Commission, 453 U.S. 182, 196, 199n. 20 (1981 ). [69]. Citizens against Rent Control at 291. [70]. Federal Election Commission v. National Right to Work Committee, 459 U.S. 197, 210 (1982). [71]. Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480 (1985). [72]. Ibid. at 500. [73]. Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). [74]. Ibid. at 251 (citations omitted). [75]. Ibid. at 259. [76]. Ibid. at 260. [77]. Ibid. at 263. [78]. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). [79]. Federal Election Commission v. National Conservative Pofitical Action Committee at 497. [80]. Austin at 659-60. [81]. Ibid. at 659 (quoting Federal Election Commission v. National Conservative Pofitical Action Committee at 500-501 ). [82]. Ibid. at 660. [83]. Ibid. at 659 (quoting Federal Election Commission v. Massachusetts Citizens for Life at 258). © 1997 The Cato Institute Please send comments to webmaster Contact Us I Jobs at Cato I Links of Interest Support the Cato Institute Send this page to a friend Printer Friendly Version 1000 Massachusetts Avenue, N.W. Washington D.C. 20001-5403 Phone (202) 842-0200 Fax (202) 842-3490 All Rights Reserved © 2006 Cato Institute http ://www.cato. org/pubs/pas/pa-282.html 5 / 18/2006 Campaign Finance "Reform" Proposals: A First Amendment Analysis Page 29 of 29 http://www.cato.org/pubs/pas/pa-282.html 5/18/2006 Law Offices Of -RAPPORT AND MARSTON An Association of Sole Practitioners 405 W. Perkins Street P.O. Box 488 Ukiah, California 95482 e-mail: drapport@pacbell.net David J. Rapport Lester J. Marston Scott Johnson Mary Jane Sheppard MEMORANDUM (707) 462-6846 FAX 462-4235 TO: FROM: DATE: SUBJECT: Honorable Mayor and City Council members David J. Rapport, City Attorney May 25, 2006 Limits on City's authority to regulate City elections You have asked what limits apply to the City's authority to regulate persons or organizations located outside the City that independently of any candidate engage in activities to influence the outcome of a City election, such as purchasing radio or television commercials on media outlets which are also located outside City limits or who telephone or mail literature to voters inside the City. CONCLUSION The City does not have the authority to regulate the conduct of persons which takes place outside the City limits, unless the State Legislature has specifically authorized such extra-territorial regulation. This limitation would effectively prevent the City from regulating a person or organization which used its own money or money donated by others to purchase commercials on media outlets, such as radio or television stations located outside the City or which mailed literature to voters from outside the City. The City also could not regulate persons calling City voters from outside the City limits. In addition, the First Amendment prevents the City from regulating persons or organizations, whether located inside or outside the City, which use their own funds to communicate with voters about candidates or measures involved in a City election. These conclusions apply to persons or organizations who are not affiliated with the candidates or committees organized to promote a ballot measure. Those persons and organizations would be subject to applicable provisions of the Political Reform Act, including those provisions regulating independent expenditure committees. ANALYSIS The City's authority to adopt ordinances derives from Art XI § 7 of the California Constitution. That section provides as follows: A county or city may make and enforce within its limits all local, police, Memorandum to Honorable Mayor and City Councilmembers Subject: Extra-territorial regulation of municipal elections Dated: May 25, 2006 sanitary, and other ordinances and regulations not in conflict with general laws. Page 2 Under this authority: A municipal corporation has generally no extraterritorial powers of regulation. It may not exercise its governmental functions beyond its corporate boundaries. (Const., art. XI, sec. 11; Von Schmidtv. Widber, 105 Cal. 151; Mulville v. City of San Diego, 183 Cal.; 4 McQuillin on Corporations, sec. 1434; 18 Cal. Jur., p. 803.) Oakland v. Brock (1947) 8 Cal. 2d 639, 641. An example of when a City may be authorized to exercise some extra-territorial regulation is contained in the following quote also from Oakland v. Brock at page 642: The law recognizes that a municipality may enforce compliance with its standards by persons selling within its confines perishable food commodities which have been produced beyond its boundaries by requiring a permit or license to sell within the city and issuing such permit or license only to those who meet the prescribed standards and regulations, including, if not unreasonable, opportunity for inspection of the outlying production plants or establishments. ( In re Blois, 179 Cal. 291; 18 Cal. Jur., p. 804; Korth v. City of Portland, 123 Or. 180; Sterett & Oberle Packing Co. v. City of Portland, 79 Or.260; State v. Nelson, 66 Minn. 166.) Apart from the Political Reform Act, there is no state statute which authorizes the City to exercise jurisdiction outside it municipal boundaries over persons who attempt to influence a municipal election. The City has territorial jurisdiction over candidates participating in a municipal election. It has jurisdiction over a committee organized by or affiliated with the candidate. It has territorial jurisdiction over media outlets operating in the City.~ Moreover, the First Amendment prevents the City, for the most part, from regulating persons or organizations which use their own funds to communicate with City voters about candidates or ballot measures involved in a municipal election. For First Amendment purposes, the U.S. Supreme Court in Buckley v. Valeo (1976) 424 U.S. 1, has drawn a distinction between election laws which limit contributions to candidates or committees affiliated with candidates and limitations on campaign spending, particularly when the person or organization being regulated is spending its own funds. In its general discussion of the First Amendment, the Court recognized that both contribution and spending limits abridge the First Amendment rights of free speech and association. However, the Court viewed the limitation on political contributions as indirectly related to the exercise of those rights, because the money is given to the candidate to spend on his or her campaign. The limitation is not so much on the contributor's free speech right as it is on the recipient who will actually use the money to communicate with voters (Id at 2 .... , ' ' 0-21 .) The expenditure hm~tat~on, on the other hand, is a direct limitation on the spender s ability to 1 The extent of that authority may be limited by state or federal telecommunications laws and the First Amendment. 2 The Court recognized that the contribution limit directly infringed the right of free association since the contribution is one means of associating with the candidate, but it did not find the infringement unconstitutional, because there were sufficient alternatives, including joining political associations and volunteer work for the candidate. (Id. at 22.) Memorandum to Honorable Mayor and City Councilmembers Subject: Extra-territorial regulation of municipal elections Dated: May 25, 2006 communicate. Page 3 A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached [footnote omitted.] This is because virtually every means of communicating ideas in' today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech. (Id. at 19.) A limitation on political contributions does not so directly impact the ability to communicate. The Court observed that if the expenditure limits were so restrictive that they could prevent a candidate from raising sufficient funds to wage an effective campaign, they could violate the First Amendment, but it found no evidence of this in the federal election limits challenged in that action. (Id. at 20-21 .) As a result of this direct-indirect distinction, when the Court focused on the various spending limits in the Federal Election Campaign Act of 1971,3 it struck them down, including the annual limits individuals or organizations could spend independently on an identifiable candidate, the limitation on spending by candidates from personal or family resources, and the limitations on campaign expenditures. Accordingly, the City's authority to regulate donations to a campaign and impose disclosure requirements is much broader than its authority to regulate campaign spending or direct advocacy by groups or individuals not affiliated with a candidate or ballot measure committee. 3 Generally, 2 USCS 431 et seq., 18 USCS 591 et seq. · The attached information was submitted by Mr. Steve Salmanini on May 25, 2006. SUPREME COURT OF ARIZONA En Banc DAVID BURNELL SMITH, a citizen ) and resident of the State of ) Arizona, ) ) Petitioner/Appellant, ) ) V. ) ) ARIZONA CITIZENS CLEAN ELECTIONS ) COMMISSION, an agency of the ) State of Arizona; STATE OF ) ARIZONA, a State of the United ) States of America; STATE OF ) ARIZONA ex rel. TERRY GODDARD, ) ARIZONA ATTORNEY GENERAL, ) ) Real Parties in Interest ) /Appellees. ) ) Arizona Supreme Court No. CV-06-0021-PR/A Court of Appeals Division One No. 1 CA-SA 05-0292A Maricopa County Superior Court No. CV 2005-093310 OPINION Appeal from the Superior Court in Maricopa County Honorable Mark F. Aceto, Judge AFFIRMED Court of Appeals, Division One Memorandum Decision (filed Jan. 19, 2006) AFFIRMED CHARLES M. BREWER, LTD. By David L. Abney Attorneys for David Burnell Smith Phoenix TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix By Diana L. Varela, Assistant Attorney General Jessica Gifford Funkhouser, Special Counsel Attorneys for Arizona Citizens Clean Elections Commission, State of Arizona, Terry Goddard, Arizona Attorney General B E R C H, Vice Chief Justice In 2004, David Burnell Smith was elected to serve in the Arizona State Legislature as a Representative from District 7. He chose to run as a publicly funded candidate. In return for the receipt of public funds, he and the other participating candidates each signed a form promising to adhere to the provisions of the Citizens Clean Elections Act, Ariz. Rev. Stat. (~A.R.S.") §§ 16-940 to -961 (Supp. 2005), and to the campaign finance rules promulgated by the Arizona Clean Elections Commission. See Ariz. Admin. Code (~A.A.C.") R2-20-215 to -228. The Citizens Clean Elections Act provides sanctions for violations of the campaign finance laws, including fines, criminal sanctions, and, for serious cases, removal from office. A.R.S. § 16-942. 42 Following an investigation of Smith's campaign expenditures, the Commission determined that Smith violated campaign finance rules by spending approximately seventeen percent more on his election than is permitted by law. See § 16-942(C). For that violation, the Commission decided that Smith should forfeit his office. This is Smith's final review of several determinations - at the administrative level, on review by the superior court, and following a decision by the court of appeals - all affirming the Commission's determination that Smith violated campaign finance laws and must leave office or concluding that Smith did not timely appeal the Commission's decision. - 2 - On January 26, 2006, this court issued an order denying Smith's request for a stay of proceedings, granting his petition for review, and affirming the judqment of the superior court. This opinion explains our reasoning. We have jurisdiction over this case pursuant to A.R.S. § 12-120.24 (2005) and Article 6, Section 5(3) of the Arizona Constitution. I. FACTUAL AND PROCEDURAL BACKGROUND The factual and procedural background of this case is lengthy. Rather than set it forth in detail here, matters will be set forth as necessary to the resolution of each claim. II. DISCUSSION A. Constitutional Privilege Smith raises a preliminary matter that, if resolved in his favor, would obviate the need to address any other issue. Accordingly, we address it first. Smith claims that this litigation cannot proceed because, as a state legislator, he enjoys a constitutional immunity to civil process during, and for fifteen days preceding, the legislative session. This privilege is set forth in Article 4, Part 2, Section 6 of the Arizona Constitution, which provides as follows: Members of the Legislature shall . . . not be subject to any civil process during the session of the Legislature, nor for fifteen days next before the commencement of each session. 96 We construe constitutional provisions in light of the - 3 - purpose of the enactment and the ~evil sought to be remedied." Ruth v. Indus. Corem'n, 107 Ariz. 572, 575, 490 P.2d 828, 831 (1971). Although there is little history surrounding the passage of Article 4, Part 2, Section 6,1 this court has noted that a similar provision in the Federal Constitution was designed to avert an arrest, either criminal or civil, that would prevent a legislator from attending session. See Yuma Greyhound Park, Inc. v. Hardy (Steiger), 106 Ariz. 178, 179, 472 P.2d 47, 48 (1970) (citing Long v. Ansell, 293 U.S. 76 (1934), discussing Article 1, § 6 of the United States Constitution); accord State v. Beno, 341 N.W.2d 668, 676 (Wis. 1984) (noting that the Wisconsin privilege, worded almost identically to Arizona's, is designed to ensure a legislator's availability to represent his constituents). The federal privilege provision has been described as extending to ua subpoena ad respondendum, aut testificandum, or a summons to serve on a jury" because such seizures of the person would preclude a representative from doing his public duty. Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 857 (1833). That rationale does not pertain here. Smith is not defending a suit brought by another. Instead, Smith has invoked 1 See John S. Goff, THE RECORDS OF THE ARIZONA CONSTITUTIONAL CONVENTION OF 1910, 902 (1991) (noting simply that the provision was read, but reflecting no comments on it). - 4 - the jurisdiction of the courts. On January 24, 2006, for example, Smith filed a petition for review urging this court to accept jurisdiction and reverse the court of appeals' memorandum decision, which affirmed the superior court's judgment that Smith should forfeit his seat in the legislature. Had Smith not invoked the jurisdiction of the courts, the Clean Elections Commission's removal order would have become final on September 8, 2005,2 and Smith's removal from office would have occurred more than fifteen days before the legislative session began. A legislator may not seek the court's intercession solely for the purpose of keeping alive a case that would remove him from office, then claim immunity from participating in the very case he has brought. Having participated in the case before the Commission during his last legislative term and lost, and then having instituted suit and appeals in an attempt to overturn the administrative result, Smith cannot claim legislative immunity. B. The Stay Request 99 Smith requested that this court stay the effect of the court of appeals' order finding that he had not properly appealed his case. See ARCAP 7(c) (authorizing court to enter a stay to preserve the status quo pending review of a case). 2 The Commission's order was dated August 25, 2005. As will be discussed, Smith had fourteen days from that date to appeal. See infra ~ 22-26. - 5 - While this court has not had occasion to set forth the analytical framework for evaluating requests for stays in the appellate context, Arizona courts have applied to such stay requests the traditional criteria for the issuance of preliminary injunctions, see Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (App. 1991) (preliminary injunction standards); Burton v. Celentano, 134 Ariz. 594, 595, 658 P.2d 247, 248 (App. 1982) (same), as did the appellate court and the parties in this case. We find the construct useful and therefore adopt it. ~[10 A party seeking a stay on appeal must thus establish the following elements: . . a strong likelihood of success on the merits; irreparable harm if the stay is not granted; that the harm to the requesting party outweighs the harm to the party opposing the stay; and that public policy favors the granting of the stay. See Shoen, 167 Ariz. at 63, 804 P.2d at 792; Burton, 134 Ariz. at 595, 658 P.2d at 248. The scale is not absolute, but sliding. Nor should the result turn on counting the factors that weigh on each side of the balance. Rather, ~the moving party may establish either 1) probable success on the merits and the possibility of irreparable injury; or 2) the presence of serious questions and [that] 'the balance of hardships tip[s] sharply'" in favor of the moving party. Shoen, 167 Ariz. at 63, - 6 - 804 P.2d at 792 (quoting Justice v. Nat 'l Collegiate Athletic Ass'n, 577 F. Supp. 356, 363 (D. Ariz. 1983)). The greater and less reparable the harm, the less the showing of a strong likelihood of success on the merits need be. Conversely, if the likelihood of success on the merits is weak, the showing of irreparable harm must be stronger. 911 We applied these criteria to Smith's request for a stay. Because we concluded, for the reasons set forth below, that Smith would not succeed on his claims and that the judgment of the superior court should be affirmed, we denied his stay request. C. The Merits 1. Removal only by impeachment or recall 912 Smith's primary claim is that he can be removed from office only by ~impeachment or recall" and then only for the reasons set forth in the constitution. He bases his claim on Article 8, Part 2, Section 1 of the Arizona Constitution, which provides that, on vote of two-thirds of the members of the Senate, a state officer may be removed from office for ~high crimes, misdemeanors, or malfeasance in office." 913 The argument that a state officer may be removed from office only as prescribed in the constitution was squarely raised and rejected in State ex rel. DeConcini v. Sullivan, 66 Ariz. 348, 355, 188 P.2d 592, 596 (1948) . In Sullivan, this - 7 - court observed that while the constitution may limit legislative powers, unless a power is expressly or by implication precluded, the legislature retains power to act. Id. at 356-57, 188 P.2d at 597. The court concluded that Article 8, Part 2 does not limit the power of the legislature to devise additional methods of and causes for removal and therefore does not provide the exclusive means of removal from public office. Id. at 357, 188 P.2d at 598; cf. A.R.S. § 1-253(B) (2002) (permitting "impeachment, removal, deposition or suspension" from office for certain offenses, even if the offense does not specify removal from office as a potential penalty). If, as Smith contends, the constitutional means were exclusive, the legislature would be unable to enact laws allowing removal of one who had become mentally incompetent or physically unable to hold office. As this court noted in Sullivan, that constitutional provision was intended to protect the public by making it easier to remove public officers, not to protect malfeasing public servants. 66 Ariz. at 358-59, 188 P.2d at 599. In this case, the public, acting in its legislative capacity, authorized removal from public office as a sanction for serious violations of the campaign finance laws. See A.R.S. § 16-942(C). Smith agreed to abide by those terms when he sought to finance his campaign with public funds. A.R.S. § 16- 947 (A) , (B) (requiring participating candidates to file an - 8 - affidavit with the Secretary of State's Office pledging adherence to campaign finance laws). His removal was not precluded by any provision of the Arizona Constitution. ~[15 Smith counters that Holmes v. Osborn, 57 Ariz. 522, 115 P.2d 775 (1941), ~held" that impeachment and recall are the sole means of removing elected officials from office. The language on which he relies from that case, however, is dictum, as that case dealt with the legislature's unquestioned power to provide the means for removal of members of the Industrial Commission. Id. at 537, 115 P.2d at 782. Moreover, the records of the Arizona Constitutional Convention suggest that the drafters of our constitution anticipated that the legislature could devise other grounds for removal. See John S. Goff, RECORDS OF THE CONSTITUTIONAL CONVENTION OF 1910, 921-22 (1991) (noting that "there is no need to make a provision in the constitution" for removal of elected officials and executive appointees because "the legislature will have the power to do that without authorization in the constitution"). Impeachment is therefore not the sole means of removal for elected officials, nor are the reasons for removal limited to those listed in Article 8, Part 2, Section 2 of the Arizona Constitution. Smith's claim that he cannot be removed except by impeachment or recall fails. - 9 - 2. Failure to timely appeal a. Background 917 The superior court held, and the court of appeals agreed, that Smith failed to timely appeal the Commission's decision that he had overspent his campaign limits and therefore must forfeit his office. We agree that Smith failed to timely appeal. 918 Determining the procedure for review of administrative decisions involves the interpretation of rules and statutes, which we review de novo. Pima County v. Pima County Law Enforcement Merit Sys. Council, 211 Ariz. 224, 227, ~ 13, 119 P.3d 1027, 1030 (2005). We apply the same rules in construing both statutes and rules. State ex rel. Romley v. Martin, 205 Ariz. 279, 281, ~ 6, 69 P.3d 1000, 1002 (2003). To determine whether Smith's appeal was timely, some procedural background is necessary. 919 On March 25, 2005, following its investigation of Smith's campaign spending, the Citizens Clean Elections Commission issued an Order and Notice of Appealable Agency Action. That preliminary order concluded that Smith had violated the Clean Elections Act and must forfeit his seat in the legislature. The order would have been final had Smith elected to take no further action in the case. But the order advised Smith that he could appeal ~pursuant to the - 10 - Administrative Procedures Act," A.R.S. §§ 41-1092 to -1092.12 (2004 & Supp. 2005), within thirty days, and Smith pursued this avenue of redress by requesting a hearing before an administrative law judge (~ALJ"). On August 22, 2005, following a two-day hearing, the ALJ issued a lengthy decision concluding that the Commission had carried its burden of proving its case and recommending to the Commission that Smith's appeal be denied. The Commission adopted that recommendation three days later, on August 25, 2005, incorporating in its Final Order the ALJ's detailed findings of fact and conclusions of law and issuing sanctions of repayment of public funds, a fine, and forfeiture of office. 921 Smith sought review of the August 25 order in two ways: First, he filed a Motion for Rehearing or Review on September 23, 2005; that motion was denied on October 4. Second, on September 26, 2005, he filed a complaint for judicial review in superior court. b. Waiver of fourteen-day rule 922 The statute providing for judicial review of Citizens Clean Election Commission rulings, A.R.S. § 16-957(B), provides that ~[t]he violator has fourteen days from the date of issuance of the order assessing the penalty to appeal to the superior court." Smith's appeal, filed September 26, was filed more than fourteen days after the Commission's August 25 order assessing - 11 - the penalty of removal from office. Smith, however, argues that for several reasons his appeal was nonetheless timely. Smith first argues that the Commission's March 25 order waived the jurisdictional appeal time set forth in A.R.S. § 16-957(B) and ~gave Representative Smith extended appellate deadlines" that became applicable five months later, on August 25, after the Commission's ruling became final. His claim is not clear, but he appears to contend that permitting him to pursue redress through the administrative process rather than requiring him to appeal the March 25 preliminary order immediately to superior court precludes the Commission and the courts from demanding timely adherence to the fourteen-day time limit imposed by A.R.S. § 16-957(B) following the final administrative determination. This argument misapprehends the administrative review structure and misconstrues the record. The administrative rules that supplement the statutory processes for obtaining review of administrative actions by the Clean Elections Commission, A.A.C. R2-20-214 to -231, provide any person who has been administratively sanctioned the due process right to challenge the decision within the administrative structure, pursuant to the Administrative Procedures Act (~APA"), A.R.S. §§ 41-1092 to -1092.12. The March 25 order notified Smith of this right, after which Smith requested and was afforded this process. The Commission's March - 12 - 25 notice to Smith that he could file an administrative appeal did not nullify the fourteen-day time limit for seeking judicial review once the administrative hearing process had resulted in a final administrative order. Rather, the order simply stayed the effectiveness of the Commission's order while Smith exhausted the available administrative process. It is well settled that the time for filing an appeal, whether by appeal or by complaint for judicial review following the conclusion of the administrative process, is jurisdictional. See Ariz. Comm'n of Agric. & Horticulture v. Jones, 91 Ariz. 183, 187, 370 P.2d 665, 668 (1962); Ariz. Dep't of Econ. Sec. v. Holland, 120 Ariz. 371, 372, 586 P.2d 216, 217 (App. 1978). The Commission has no power to waive it because the failure to timely appeal ~deprive[s] th[e] court of jurisdiction to review the [administrative] decision." Holland, 120 Ariz. at 372, 586 P.2d at 217; see also Jones, 91 Ariz. at 188, 370 P.2d at 669. Smith points to no language in the Commission's March 25 order purporting to excuse the time limits of A.R.S. § 16- 957(B), and we find none. The order advises Smith only that he has the right to administratively appeal the preliminary determination that he has violated campaign finance rules by invoking the procedures set forth in the Administrative Procedures Act. It confirmed the procedure that existed as a matter of law. The Commission did not waive the provisions of - 13 - A.R.S. § 16-957(B) by any language in the March 25, 2005 order.3 c. Premature appeal ~[27 Smith claims that the Complaint for Judicial Review he filed in superior court on September 26 should be considered a ~premature" appeal that sprang to life after the Commission subsequently issued its October 4 order denying Smith's Motion for Rehearing or Review. He maintains that the appeal was timely because, while it was filed eight days before the ruling appealed from, it nonetheless came ~within" fourteen days of the Commission's issuance of the order assessing the penalty. ~28 On August 25, 2005, the Clean Elections Commission adopted the ALJ's decision and recommendation and entered the Commission's ~Final Order," which assessed penalties requiring repayment of $34,625.09 to the Clean Elections Fund, imposing a civil penalty of $10,000, and requiring Smith to forfeit his public office. ~[29 Smith had the right to seek judicial review of that decision pursuant to the Judicial Review of Administrative Decisions Act ("JRADA"), A.R.S. §§ 12-901 to -914 (2003), which 3 Smith seems to confuse the right to administrative appeal within the administrative process pursuant to the APA, found in Title 41, with judicial review of the ultimate administrative order pursuant to the Judicial Review of Administrative Decisions Act (~JRADA," sometimes formerly called the Administrative Review Act), found in Title 12. A statement regarding Smith's rights under the APA did not affect later- attaching rights under the JRADA. - 14 - allows thirty-five days to file an appeal. A.R.S. § 12-904(A). The provisions of the JRADA do not apply, however, if a more definite procedure is set forth in ~the act creating or conferring power on an agency or a separate act." A.R.S. § 12- 902 (A) ( 1 ) . If more definite provisions exist, those more specific provisions control. Id.; see also Ariz. State Tax Comm'n v. Phelps Dodge Corp., 116 Ariz. 175, 177, 568 P.2d 1073, 1075 (1977) (observing that specific statutes displace general statutes). In this case, the Clean Elections Act itself contains a definite term for appeals: A.R.S. § 16-957(B) requires that appeals be taken no later than "fourteen days from the date of issuance of the order assessing the penalty." The time to appeal is jurisdictional; any appeal not filed within the stated period is barred. A.R.S. § 12-902(B). 9[30 The penalty-assessing order in this case was issued on August 25, 2005. Smith's appeal should therefore have been filed on or before September 8. Smith filed nothing between August 25 and September 8. ~[31 On September 23, however, Smith filed a Motion for Rehearing or Review. He did so pursuant to an invitation in the last paragraph of the Commission's August 25 ~Final Order," which contains the following directions to the aggrieved party: Pursuant to A.R.S. § 41-1092.09, any party that is aggrieved by this Order may file with the Commission, not later than thirty (30) days after service of this - 15 - decision, a written motion for rehearing or review .... In the alternative, any party may file an action for judicial review in the Superior Court of Arizona, pursuant to A.R.S. § 16-957(B) and A.A.C. R2- 20-228. Under the JRADA, a motion for rehearing tolls the time to appeal. See A.R.S. § 12-901(2) (providing that no administrative order is final until any motion for rehearing or review has been decided). Smith therefore claims that his time to appeal was extended until the disposition of the rehearing motion. Smith's argument fails because A.R.S. § 16-957(B) expressly requires that an appeal must be taken no later than ~fourteen days from the date of issuance of the order assessing the penalty." In this case, the penalty-assessing order was issued on August 25, 2005, and Smith did not file an action within fourteen days of that date. Moreover, when that time expired, Smith had not yet filed his motion for rehearing or review. His time to appeal therefore lapsed. 933 Even if section 12-901(2) applied, however, and would have extended the time to appeal if a timely motion for rehearing had been filed, Smith's motion for rehearing was filed too late to extend the time to appeal. Because the JRADA time provisions do not control when an administrative agency's statute provides a definite appeal time, it follows that the Citizens Clean Elections Act's fourteen-day appeal provision for - 16 - seeking judicial review cannot be extended by a rehearing motion filed after the fourteen days have expired. The Commission may, by its August 25 order, have bound itself to consider Smith's rehearing motion, but it could not have conferred jurisdiction on the superior court to consider an untimely appeal. We recognize that Smith might have been misled by the language in the Commission's August 25 Final Order regarding the filing of a motion for rehearing or review. But even assuming that he was misled by the August 25 order to believe that a motion for rehearing or review filed after the appeal time has run can stay the effect of an otherwise final order, the fact remains that even after the Commission denied the motion on October 4, 2005, Smith took no action in the fourteen days following that date to appeal his case. The record reflects that Smith did nothing until he amended his September 26 complaint on October 28, twenty-four days after the latest possible appealable order. Thus his appeal time expired. 935 If, on the other hand, the August 25 order is viewed as the final ~order assessing a civil penalty," Smith filed his September 26 complaint thirty-one days after the August 25 order and his amended complaint, dated October 28, 2005, more than two months after the August 25 order. Under any state of the facts, Smith failed to timely appeal the Commission's order, and it - 17 - became final.4 This court is not free to ignore the clear statutory language of A.R.S. § 16-957(B) and create jurisdiction in the superior courts where the legislature has provided to the contrary. ~[36 Smith seeks to avoid the consequences of the late filing of his appeal by arguing that the September 26 complaint was timely because it was ~within" fourteen days of the October 4 order denying rehearing or review. Section 16-957(B), however, does not require that a notice of appeal be filed ~within" a certain number of days of a ruling; it says that the ~violator has fourteen days from the date of issuance of the order assessing the penalty to appeal." Id. (emphasis added). ~From" means ~after." Until an order has been entered, there can be no appeal. See A.R.S. § 12-909 (requiring complaint in appeal from an administrative decision to contain a statement of the findings and decision sought to be reviewed). ~[37 Smith asserts that Barassi v. Matison holds that an appellate court may exercise jurisdiction over a premature appeal if the appellant displayed an intent to appeal, appellees 4 For the reasons discussed supra ~ 31-35, we encourage the Commission to revise its form to avert any possible confusion in future cases. In this case, because Smith did not file his complaint within thirty days of any relevant order and would not have prevailed in any event on his claim that he could be removed only by impeachment or recall, see supra ~ 12-16, he suffered no prejudice from any confusion that might have been engendered by language in the Commission's order. - 18 - were not prejudiced, and the appeal was only mistakenly filed early. 130 Ariz. 418, 636 P.2d 1200 (1981). Barassi, however, creates only a limited exception to the final judgment rule that allows a notice of appeal to be filed after the trial court has made its final decision, but before it has entered a formal judgment, if no decision of the court could change and the only remaining task is merely ministerial. Compare id. at 422, 636 P.2d at 1204 (notice filed after issuance of minute entry but before entry of the order), and Comeau v. Ariz. State Bd. of Dental Exam'rs, 196 Ariz. 102, 106, ~ 16, 993 P.2d 1066, 1070 (App. 1999) (notice filed after court issued unsigned minute entry, but before clerk entered the judgment), with Baumann v. Tuton, 180 Ariz. 370, 372, 884 P.2d 256, 258 (App. 1994) (holding that notice of appeal filed while a motion for a new trial was pending in the trial court did not confer jurisdiction on the appellate court). 938 Smith does not fall under the Barassi exception. Before filing his complaint for judicial review, he had requested that the Commission review his case or, in the alternative, grant him a new hearing. These are substantive matters requiring the discretion of the decision-maker. They are not ministerial tasks. We noted in Barassi that appellate courts should dismiss a case for lack of jurisdiction while such a motion was still pending in the trial court. Barassi, 130 - 19 - Ariz. at 422, 636 P.2d at 1204.5 Smith's reliance on Barassi is thus unavailing. Beyond this limited exception, Arizona courts have consistently and with good reason held that premature notices of appeal are ineffective because they disrupt court processes. Baumann, 180 Ariz. at 372, 884 P.2d at 258. The better practice is to give litigants ~the opportunity to persuade the trial court of its error so that the trial court's ruling on a pending motion may cure any error and obviate the necessity for an appeal." Id. (citation omitted); see also, e.g., Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 561, 578 P.2d 985, 990 (1978). Requiring timely notices of appeals following entry of final judqments also prevents two courts from assuming jurisdiction and acting at the same time. See Clifton Power Corp. v. Fed. Energy Reg. Comm'n, 294 F.3d 108, 110 (D.C. Cir. 2002). Sound reasons thus support the rule that one may appeal only from a final judgment. In short, an appeal will lie only from a final administrative order. Any person who fails to seek review "within the time and in the manner provided in this article . . . shall be barred from obtaining judicial review of 5 Because we conclude that Barassi does not apply to Smith's situation, we do not consider his arguments that he meets the further requirements of Baras$i that he displayed an intent to appeal, that the Appellees were not prejudiced, and that the notice of appeal was only mistakenly filed prematurely. - 20 - the decision." A.R.S. § 12-902(B) (emphasis added). In concluding that Smith's action was barred, the superior court and court of appeals simply followed established law. Even under the most charitable interpretation of the record, Smith's appeal was untimely. 3. Jury trial on quo warranto claim Smith next claims that the Arizona Constitution guarantees him the right to a jury trial on the Attorney General's request for a writ of quo warranto to remove him from office. We review such legal questions de novo. See US West Commc'ns, Inc. v. Ariz. Corp. Comm'n, 201 Ariz. 242, 244, ~ 17, 34 P.3d 351, 353 (2001). ~42 The Attorney General is authorized to bring a quo warranto action to oust from office ~any person who usurps, intrudes into or unlawfully holds or exercises any public office · . . within the state." A.R.S. § 12-2041(A) (2003). On October 20, 2005, sixteen days after the Commission denied Smith's request for a rehearing, after the time for filing a complaint for judicial review of the Commission's final administrative decision had run, the Attorney General filed a petition for a writ of quo warranto to have Smith removed from his public office. At that time, the administrative review process was final. The Commission's findings of fact were - 21 - conclusive, as was the Commission's legal determination that Smith must forfeit his office. In response to the Attorney General's complaint, Smith asserted a right to a jury trial pursuant to Article 2, Section 23 of the Arizona Constitution, which guarantees that "[t]he right of trial by jury shall remain inviolate." This court recently observed, however, that Arizona's jury trial provision merely preserves a right to jury trial if such a right existed at common law; it does not create a right where none existed before. See Derendal v. Griffith, 209 Ariz. 416, 419, ~ 8, 104 P.3d 147, 150 (2005). As the court of appeals correctly concluded, that right has never extended to civil cases that turn on uncontested facts. Smith v. Ariz. Citizens Clean Elections Corem'n, i-CA-SA 05-0292A, slip op. ~ 65, 67-68 (Ariz. App. Jan. 19, 2006) (mem. decision); see also K.B. v. State Farm Fire & Cas. Co., 189 Ariz. 263, 268, 941 P.2d 1288, 1293 (App. 1997) (stating that the rules of civil procedure do not require jury trial if no facts are in dispute). In this case, we must resolve only whether Smith timely appealed, a matter controlled by law. See A.R.S. § 16- 957(B). As a matter of law, when the deadline passed without Smith having filed a timely complaint for judicial review, he lost his right to appeal. See State v. Dawson, 164 Ariz. 278, 280, 792 P.2d 741, 743 (1990). Because no fact question arises - 22 - from these circumstances, there is no right to a jury trial. See Preston v. Denkins, 94 Ariz. 214, 221, 382 P.2d 686, 690 (1963). While contested facts might arise if we were determining whether Smith overspent, Smith's failure to timely appeal removes that question from the case. Smith cites State ex rel. Bullard v. Jones, 15 Ariz. 215, 222, 137 P. 544, 547 (1914), in support of his quest for a jury trial, incorrectly stating that this court held that one is entitled to a jury trial in quo warranto proceedings. More correctly, the court observed, in dictum, that ~issues of fact arising in quo warranto proceedings were triable by jury." Id. (emphasis added) (quoting II BAILEY ON HABEAS CORPUS § 328). That statement is correct. But, as noted, there are no facts extant here for a jury to decide. Smith's demand for a jury trial therefore fails. 4. Declaratory judgment action as an independent lawsuit Smith next claims that his September 26 complaint should stand on its own as a self-sufficient lawsuit raising constitutional challenges to the Citizens Clean Elections Act that are independent of his challenges to the Commission's rulings against him. These claims, he asserts, are not subject to the fourteen-day time limit imposed by A.R.S. § 16-957(B). To the contrary, a party may not use a complaint for - 23 - declaratory relief as a substitute for a timely complaint for judicial review of an administrative order. Smith was required to raise all of his challenges to the Commission's actions and his related constitutional claims in a timely complaint for judicial review under the JRADA. See Hurst v. Bisbee Unified Sch. Dist. No. Two, 125 Ariz. 72, 75, 607 P.2d 391, 397 (App. 1979) (stating that constitutional challenges to an administrative act must be raised through appeal of the final agency decision); see also Thielking v. Kirschner, 176 Ariz. 154, 156, 859 P.2d 777, 779 (App. 1993) (noting that ~[a] party · . . cannot substitute a declaratory relief action for a timely appeal" of an administrative decision). 949 The reasons for requiring challenges to administrative actions to be raised in appeals from agency decisions rather than in separate declaratory judgment actions parallel those for requiring notices of appeals to be timely filed following an agency's final decision: cases should proceed in only one forum at a time, and administrative decisions should become final on an identifiable date. If independent collateral challenges to the constitutionality of the underlying statutes were allowed, agency decisions would not be final until the time for filing declaratory judqment actions has run. Id. The appropriate method for raising such claims is a timely complaint for judicial relief filed pursuant to the JRADA. - 24 - Smith's untimely complaint therefore does not survive as an independent lawsuit on the merits of this claim or any other of his substantive claims. III. CONCLUSION 951 The issues Smith has raised are not novel nor, in the circumstances of this case, is Smith shielded by legislative immunity. The record shows that Smith was afforded all appropriate process in the administrative proceedings, and he simply failed to timely pursue review of the Commission's Final Order. 952 We therefore grant the Petition for Review, but deny relief. We affirm the judgment of the superior court and the memorandum decision of the court of appeals. CONCURRING: Rebecca White Berch, Vice Chief Justice Ruth V. McGregor, Chief Justice Michael D. Ryan, Justice Andrew D. Hurwitz, Justice W. Scott Bales, Justice - 25 -