Snyder's Law of Unintended Consequences

As the Los Angeles Times reported last week, the convictions of former council member and prominent local lobbyist Art Snyder were overturned by a state appellate court. But for some otherwise unrelated decisions made by a host of well-intentioned individuals, the result may have been different. At least in the political ethics world, perhaps Murphy's law will have to be replaced by Snyder's Law of Unintended Consequences.

Consider:

The Fair Political Practices Commission generally levies administrative fines in most ethics cases. In fact, Mr. Snyder was fined $14,000 by the Commission in 1982. Yet, with respect to the campaign allegations at issue in the recent decision, the FPPC referred the matter to the Los Angeles County District Attorney for criminal prosecution.
The so-called "aiding and abetting" statute relied upon by the court in overturning Mr. Snyder's convictions was added to the State Political Reform Act in 1984. As interpreted by the court, the law provides that a defendant who files lobbying, campaign or other reports is liable only for administrative penalties for violations of our political laws, and not civil or criminal sanctions.
Mr. Snyder plead guilty to eight misdemeanor counts of making political contributions in a false name and one conspiracy count. By pleading guilty to misdemeanors, Mr. Snyder avoided potential felony convictions, an expensive trial and the threatened loss of his license to practice law.
As part of the plea bargain, the People conceded that Mr. Snyder was a lobbyist under state law at the times relevant to the case. This was true even though Mr. Snyder was not registered to lobby officials in Sacramento, but instead focused his prominent lobbying practice on the City of Los Angeles. A lobbyist in LA is not necessarily a lobbyist at the state level, and vice-versa.
Proposition 208, which 61% of the voters approved in 1996, amended the "aiding and abetting" statute to make it clear that administrative penalties and civil and criminal sanctions could be sought against those who assist others in violating the state's ethics law.
In January 1998, a federal district court judge enjoined enforcement of all of Proposition 208 because key provisions were unconstitutional. That decision is currently on appeal, but the injunction remains in effect (including against the revised "aiding and abetting" statute).

Taken separately, each of the foregoing would appear to have little impact on Mr. Snyder's case. Taken together, they yielded the court's overturning his conviction on the grounds that: because he was a lobbyist (as the prosecution conceded), the "aiding and abetting" section applied to Mr. Snyder. This means that, in the words of the court, "prior to Proposition 208, any person with reporting obligations under the [Political Reform] Act (such as a lobbyist) was subject to administrative action for a violation...but not to criminal liability..." This is especially true, the court reasoned, precisely because Proposition 208 repaired the apparent defect in the "aiding and abetting" statute. (Implying that, without the change, the literal reading of the statute would be less warranted).

Although it is likely that the case will be appealed to the California Supreme Court, there is no guarantee the justices will agree to hear the case. If not, Mr. Snyder will be a free man. In yet another irony, proving that you can never put your foot in the same stream twice, the FPPC cannot now levy administrative fines against him since the five year statute of limitations (added last year) has expired. Moreover, if the case stands, persons who have filing obligations under the state ethics law (lobbyists, most public officials and candidates) and compensated professionals who assist them (attorneys, accountants, campaign consultants) will be free from criminal and civil prosecution while "non-filers" could be convicted of crimes for violating the law.

Capping off this series of ironies is the fact that pending on the Governor's desk is AB1864 (Papan) which would make several changes to the Political Reform Act sought by the FPPC and one which the Commission opposes. The change opposed by the FPPC would repeal the Proposition 208 "aiding and abetting" statute (regardless of whether the initiative survives on appeal) and replace it with the prior version of the statute--the same one which the court held did not apply to Mr. Snyder. Who knows what unintended consequences will result from Governor Wilson's signature or veto of this measure?