Proposition 73, California's new campaign finance law, has been "legally unenforceable" all year because the federal government has never certified that the act will not discriminate against minority voters, the U.S. Justice Department said Thursday.
Casting additional confusion over the implementation of Proposition 73, a Justice Department spokeswoman said the law cannot be enforced in statewide elections or campaigns in four Central California counties until the measure is cleared under anti-discrimination provisions of the federal Voting Rights Act.
The ballot initiative, approved last year by voters, generally was assumed to have gone into effect last Jan. 1.
Similarly, a portion of Proposition 103 that creates the elected post of insurance commissioner cannot be enforced until the insurance initiative also is cleared by the Justice Department.
"Campaign financing rules are something that would have to be pre-cleared as would this new elected position," said Amy Brown, a spokeswoman for the Justice Department. Changes (in the law) that are required to be pre-cleared by the Justice Department and are not pre-cleared are legally unenforceable."
The Justice Department has 60 days to conduct an initial review, although that time could be extended.
Some Democrats, who are seeking to overturn Proposition 73, have contended that the measure's restrictions on campaign funding unfairly discriminate against minority candidates because they would have greater trouble winning election. So far, no one has contended that Proposition 103 would lead to discrimination against minority voters.
The Justice Department has jurisdiction over the issue in California because four counties--Kings, Merced, Monterey and Yuba--historically have had low election turnout among minority voters. Any Justice Department finding of discrimination would apply to all elections held in those counties, including statewide elections.
Secretary of State March Fong Eu did not seek Justice Department clearance before or after the November election in the belief that the measures did not have to be reviewed to ensure they complied with the federal Voting Rights Act.
Eu issued a statement Thursday asserting that Proposition 73 remains in effect, warning: "Anyone who violates Proposition 73 anywhere does so at their own peril."
At the same time, however, she sent the Justice Department copies of Propositions 73 and 103 and asked for an expedited review of the measures. In addition, she asked the Justice Department to review Proposition 68, a second campaign finance measure that was approved by voters but was superseded by Proposition 73 because the latter received more votes.
Chief Deputy Secretary of State Anthony L. Miller said Eu is now operating on the assumption that the Justice Department is correct in requiring a review but still believes federal clearance is unnecessary.
"We think this whole thing has been blown out of proportion because we don't think pre-clearance is required," Miller said.
The issue was first raised by Joseph Remcho, an attorney representing Democratic Assembly Speaker Willie Brown, Senate President Pro Tem David A. Roberti and several labor unions in legal efforts to nullify Proposition 73.
Among its provisions, the initiative prohibits the transfer of campaign contributions from one candidate to another and imposes annual limits ranging from $1,000 to $5,000 on the size of donations politicians can accept.
Remcho contends that the law discriminates against minority candidates because they often have greater difficulty raising money and have long relied on the transfer of contributions from other politicians.
"This has an adverse effect on ethnic minorities," Remcho said, adding that he will petition the Justice Department to declare that Proposition 73 is discriminatory.
Despite the Justice Department stance that Proposition 73 cannot be enforced, such leading political fund-raisers as Assembly Speaker Brown and Atty. Gen. John K. Van de Kamp said they will continue to follow the spirit of the law and abide by its limits on contributions.