Charter language for each local government pre-empted by Senate Bill 1890, which governor has signed, county and city attorneys say
In signing a bill the Florida Legislature approved this year, Gov. Ron DeSantis has raised campaign finance contributions for local government candidates as of July 1, Sarasota County Attorney Frederick J. “Rick” Elbrecht has reported to the County Commission.
In a May 14 memo written at the request of Sarasota County Supervisor of Elections Ron Turner, Elbrecht pointed out that Section 6.5A of the Sarasota County Charter says, “No candidate for any county office for which compensation is paid shall accept any contribution from any contributor, including any political committee, as defined by state law, in cash or in kind in excess of $200.00.”
(That measure went into effect after voters approved it during the November 1990 General Election, the Charter notes.)
The amount would rise to $1,000, Elbrecht wrote in his memo.
Further, Elbrecht pointed out, a contribution up to $3,000 could be given to a candidate for statewide office or a candidate seeking retention as a justice of the Florida Supreme Court, or a political committee that sponsors or opposes a state constitutional amendment. The limitation regarding such political committees would no longer apply, he wrote, after the Florida Secretary of State “has issued a certificate of ballot position and a designating number for the proposed amendment that the political committee is sponsoring or opposing.”
The state law that Senate Bill 1890 amends already imposes a penalty of up to one year of imprisonment and a $1,000 fine for any person who “knowingly and willfully” makes or accepts a single contribution over the limit. That would constitute a first-degree misdemeanor, the Florida Statutes say. Any person who knowingly and willfully accepted more than one contribution that exceeded the new law’s limits would be guilty of a third-degree felony, punishable by up to five years in jail and a $5,000 fine.
During the May 18 Sarasota City Commission meeting, City Attorney Robert Fournier took the opportunity to make the city board members aware of the new law, if they had not heard about it already.
The City Charter also has a $200 cap on campaign contributions to candidates, he said. That went into effect in 2007, he noted, after it voters approved the limit during a referendum.
Fournier pointed out that Senate Bill 1890 “does not grandfather in these existing provisions.” Therefore, Fournier continued, it was his opinion that the $1,000 limit would affect City Commission candidates, as well.
When Mayor Hagen Brody asked how the change in the law would be addressed in the city Charter, Fournier replied that that section of the Charter could be amended the next time city leaders update the document.
More details of the amended state law
The new law, which the governor signed on May 7, amends Section 106.08 of the Florida Statues, Elbrecht explained in his May 14 memo. It added Subsection 11, which says, “A county, a municipality, or any other local governmental entity is expressly preempted from enacting or adopting:
- 1. “Contribution limits that differ from the limitations established in subsection (1);
- 2. “Any limitation or restriction involving contributions to a political committee or an electioneering communications organization; or
- 3. “Any limitation or restriction on expenditures for an electioneering communication or an independent expenditure.”
Then Subsection 11(b) adds, “Any existing or future limitation or restriction enacted or adopted by a county, a municipality, or any other local governmental entity which is in conflict with this subsection is void.”
The sponsor of the bill was Sen. Ray Wesley Rodrigues, R-Fort Myers. The legislative webpages devoted to the bill say it passed 23-17 in the Senate and 75-40 in the Florida House. It survived its hearing in the Senate Ethics and Elections Committee with a 5-4 vote, the webpages note.
On May 8, the day after DeSantis signed the law, the American Civil Liberties Union (ACLU) of Florida announced that it had filed a lawsuit against the state to try to keep the law from going into effect. The complaint focuses on the $3,000 cap.
An ACLU news release said the new law “will chill the citizen initiative process and violate Floridians’ First Amendment rights.”
County commissioner asks how to deal with Charter provision
During the County Commission’s regular meeting on May 18, Commissioner Christian Ziegler brought up the bill. “Is there something we need to do?” he asked Elbrecht. “How does that work?” Ziegler added, referring to the Sarasota County Charter.
“We can’t just remove it,” Elbrecht replied of the Charter language imposing the $200 restriction.
Citizens would have to vote to change the Charter, Elbrecht added. However, he continued, sometimes notes are placed in the Charter to point out that recent legislation has affected a particular section.
“What if the public said, ‘No,’” Ziegler responded, referring to a referendum.
This is not the only provision of the Charter that has been affected by other action, including court decisions, Elbrecht said. “They’re unenforceable,” he added of such Charter sections, based on court or legislative action.
“We already have an asterisk in the Charter for something from years ago when it got changed,” Chair Alan Maio pointed out. “You can’t just rip [the language] out of the Charter.”
In response to a question from Maio, Elbrecht said, “It might be possible that somebody might think that we’re wrong [in the May 14 memo opinion] and may take it to court to try to enforce” the [Charter] provision.”
In concluding that memo, Elbrecht wrote that the document had been provided to Supervisor of Elections Turner “and [it] is not intended to be relied upon by any contributor, candidate, campaign, or political action committee. Any contributor, candidate, campaign, or political action committee with questions about the campaign contribution limitations should seek the advice of their private counsel to examine their individual circumstances.”
In response to a Sarasota News Leader question about that part of the memo, Turner provided this statement: “The supervisor of elections is the repository for campaign finance reports but does not regulate campaign finance activities. Our office will include a copy of the county attorney’s memo in information packets provided to candidates seeking affected offices. However, as the memo suggests, a candidate must seek her or his own legal guidance regarding possible impacts of SB1890 as it relates to the county charter.”
As the county commissioners concluded their May 18 discussion, Chair Maio said, “I expect people are going to start using [the new contribution cap].”