California’s campaign watchdog agency has suspended a long-standing policy banning its members from contributing to federal candidates after one commissioner donated to Vermont Sen. Bernie Sanders’ presidential bid.
The decision by the Fair Political Practices Commission, which is responsible for policing campaign finance in California, is drawing criticism from some political reform advocates and former state officials who say the policy was put in place to avoid an appearance of bias in favor of political candidates whose campaigns are scrutinized by the state agency.
Dan Schnur, a former FPPC chairman who teaches political communication at USC and UC Berkeley, said the policy is important because “board members are entrusted with the responsibility of overseeing the state’s elections in a fair-minded and even-handed way.”
“Even the perception of bias undermines the credibility of the board’s decisions,” Schnur said. “If you are going to oversee state elections, then you should be able to restrain yourself from partisan political involvement during your time of service.”
The panel voted Sept. 19 to suspend the policy restricting donations and asked the state attorney general for an opinion on the legality and scope of the rules, which some FPPC members say violate their 1st Amendment rights.
“I absolutely believe that both the U.S. and the State constitutions protect my right to make political campaign contributions,” Commissioner Brian Hatch said in an email to The Times. “The issue that the making of campaign contributions is a form of political speech protected by the [U.S.] Constitution has been settled law for nearly five decades.”
Hatch made two campaign contributions totaling $30 to the Sanders campaign in June. In September, he initiated a discussion about the policy that led to the panel vote to suspend it.
“Suffice it to say that I have made a small number of very small contributions to Bernie Sanders for President, just as more than four million other people have,” Hatch said in the email.
Hatch, a former labor lobbyist who was appointed to the panel in 2017 by Secretary of State Alex Padilla, said he knew about the policy when he made the contributions but believes the commission’s rule is in conflict with a state law that he says bars any action that would impinge on constitutional freedom-of-speech guarantees.
Robert Stern, former general counsel for the FPPC and a coauthor of the state’s Political Reform Act in the 1970s, disagrees with Hatch’s stance, noting that the prohibition on federal campaign contributions has been in place for decades.
“I think it’s wrong for Brian Hatch to make contributions to Bernie Sanders,” Stern said. “The policy was put in place by the FPPC in order to remove any appearance of partisanship or bias on the part of commissioners.”
Stern said the commissioner should request that his contributions be returned. Hatch said he would do so if the attorney general finds the rules on contributions extend to federal campaigns and are not in violation of constitutional protections.
Schnur said Hatch does not have a constitutional right to serve on the commission, and commissioners can always step down if they want to contribute to political candidates.
Hatch, a Long Beach resident, said that the panel’s job is to enforce state laws that apply to state campaigns and that it has no jurisdiction over federal campaigns that are regulated by the federal government. The panel’s action does not affect the ban on commissioners’ making contributions to state candidates.
The state manual provided to commissioners has long said that state law “prevents Commissioners from participating in or contributing to any election campaign.”
“Thus,” the manual adds, commissioners “may not make contributions to any campaign involving an election held in this state. This includes campaigns for federal office if the candidate will appear on the ballot in California (e.g., a campaign for President or a California congressional seat).”
FPPC Chairman Richard Miadich noted that many federal elected officials also held state office in California and have state campaign committees that are subject to the FPPC’s oversight. He said he did not know Hatch had contributed to the Sanders campaign when the panel voted unanimously to suspend the policy pending the attorney general’s opinion.
“This statute as we have been interpreting it previously does arguably infringe on commissioners’ 1st Amendment rights to contribute to federal candidates,” Miadich told his fellow commissioners during a public hearing in September. “That’s a significant concern.”
Miadich, an attorney and former lobbyist appointed chairman in May by Gov. Gavin Newsom, said Tuesday that he will not make campaign contributions to federal candidates, including while the legal opinion is pending.
“At a minimum, it could create an appearance of bias, and I think it is our duty to be fair and impartial,” Miadich said.
Miadich said that if state Atty. Gen. Xavier Becerra concludes the policy does not violate the constitutional rights of commissioners, he will propose that the commission make clear that federal contributions are prohibited.
“If it doesn’t breach free speech, I believe that is the right thing to do for the state’s ethics and campaign watchdog agency,” he said.