‘Behested’ Payments and the California Political Reform Act

California’s Political Reform Act regulates “behested payments” which are requested by elected officials and made by donors. Government Code Section 82004.5 defines “behested payment” to mean a payment that is made at the behest of a committee, an elected officer, a member of the Public Utilities Commission, or an agent thereof, under any of the following three circumstances:

• Full and adequate consideration is received from the committee or elected officer.

• The payment is made to a different candidate or to a committee not controlled by the behesting candidate.

• As to an elected officer, it is clear from the surrounding circumstances that the payment was made for purposes unrelated to the officer’s seeking or holding of elective office (i.e., a portion of the payment is used for election-related activities).

In addition, pursuant to Section 82004.5, the following five types of payments are presumed to be for purposes unrelated to an elected officer’s seeking or holding of elective office:

• A payment made principally for personal purposes, in which case it may be considered a gift. Payments that are otherwise subject to limits are presumed to be principally for personal purposes.

• A payment made by a state, local, or federal governmental agency.

• A payment made by a nonprofit organization that is exempt from taxation.

• A payment made principally for charitable purposes.

• A payment made principally for legislative or governmental purposes by a person other than a state, local, or federal governmental agency.

In addition, the PRA in Government Code Section 82041.3 defines the phrase “made at the behest of” to mean made under the control or at the direction of, in cooperation, consultation, coordination, or concert with, at the request or suggestion of, or with the express, prior consent of.