BILL ANALYSIS Ó SB 488 Page 1 Date of Hearing: July 5, 2011 ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING Paul Fong, Chair SB 488 (Correa) - As Introduced: February 17, 2011 SENATE VOTE : 28-7 SUBJECT : Political Reform Act of 1974: slate mailers. SUMMARY : Requires a slate mailer that represents the position of a public safety organization to include specified information about the organization's membership. Prohibits the use of a logo of a governmental organization or of specified non-governmental organizations in a slate mailer without the written consent of the organization. Specifically, this bill : 1)Requires a slate mailer organization to obtain express written consent from a governmental agency prior to using the logo, insignia, emblem, or trademark of the agency, or a substantially similar logo, insignia, emblem, or trademark, in a slate mailer or other mass mailing, if the use of the item would reasonably be understood to imply the participation or endorsement of that agency. 2)Requires a slate mailer organization to obtain express written consent from a nongovernmental organization that represents law enforcement, firefighting, emergency medical, or other public safety personnel, prior to using the logo, insignia, emblem, or trademark of the organization, or a substantially similar logo, insignia, emblem, or trademark, in a slate mailer or other mass mailing, if the use of the item would reasonably be understood to imply the participation or endorsement of that organization. 3)Requires a slate mailer organization that sends a slate mailer or other mass mailing that identifies itself or its source material as representing a nongovernmental organization with a name that includes the term "officer," "peace officer," "reserve officer," "deputy," "deputy sheriff," "police," "highway patrol," "California Highway Patrol," "law enforcement," "firefighter," "fire marshal," "paramedic," "emergency medical technician," "public safety," or any other term that would reasonably be understood to imply that the SB 488 Page 2 organization is composed of, or affiliated with, law enforcement, firefighting, emergency medical, or other public safety personnel, to disclose the total number of members in the organization identified and the number of members working or living within the county in which the slate mailer or mass mailing is being delivered. Requires this disclosure to be included on the outside of each piece of mail and on at least one of the inserts included with each piece of mail in no less than 12-point roman type, which shall be in a color or print that contrasts with the background so as to be easily legible. 4)Makes various findings and declarations. EXISTING LAW : 1)Defines a "slate mailer" as a mass mailing that supports or opposes a total of four or more candidates or ballot measures. 2)Defines a "slate mailer organization" as a person who is involved in the production of one or more slate mailers, exercises control over the selection of the candidates and measures to be supported or opposed in the slate mailers, and receives or is promised payments totaling $500 or more in a calendar year for the production of one or more slate mailers. Provides that none of the following are slate mailer organizations: a) A candidate or officeholder or the controlled committee of a candidate or officeholder; b) An official committee of any political party; c) A legislative caucus committee; or, d) A committee primarily formed to support or oppose a candidate, officeholder, or ballot measure. 3)Prohibits a slate mailer organization or a committee primarily formed to support or oppose one or more ballot measures from sending a slate mailer unless it contains all of the following: a) The name, street address, and city of the slate mailer organization or committee on the outside of each piece of slate mail and on at least one of the inserts included with SB 488 Page 3 each piece of slate mail in no less than 8-point type; b) A notice, in no less than 8-point type, that consists of the following statement: -------------------------------------------------------- | NOTICE TO VOTERS | |THIS DOCUMENT WAS PREPARED BY (name of slate mailer | |organization or committee primarily formed to support | |or oppose one or more ballot measures), NOT AN OFFICIAL | |POLITICAL PARTY ORGANIZATION. Appearance in this | |mailer does not necessarily imply endorsement of, or | |opposition to, any issues set forth in this mailer. | |Appearance is paid for and authorized by each candidate | |and ballot measure which is designated by an *. | -------------------------------------------------------- c) An asterisk (*) to designate each candidate and each ballot measure that has paid to appear in the slate mailer in the same type size, style, color, and legibility as is used for the name of the candidate or the ballot measure name or number and position advocated. d) The political party affiliation of a candidate appearing in the slate mailer, in no less than 9-point type, if the candidate is not running for non-partisan office and is a member of a political party differing from the political party with which the mailer appears by representation or indicia to represent. 4)Makes it a misdemeanor for a person to do any of the following: a) To use the Great Seal of the State of California in any campaign literature or mass mailing with intent to deceive the voters; b) To use the seal of a city in any campaign literature or mass mailing with intent to deceive the voters; c) To use the seal of the California Supreme Court, an appellate court, or a superior court in any campaign literature or mass mailing with intent to deceive the voters; SB 488 Page 4 d) To use the seal of a county, school district, special or other district, or any board, commission, or agency of a local jurisdiction in any campaign literature or mass mailing with intent to deceive the voters; or, e) To use the official seal or insignia of any public entity on a simulated ballot or simulated sample ballot, or on the envelope in which the simulated ballot or simulated sample ballot is mailed or otherwise delivered. 5)Creates the Fair Political Practices Commission (FPPC), and makes it responsible for the impartial, effective administration and implementation of the Political Reform Act (PRA). 6)Provides that a violation of the PRA is punishable by criminal, civil, or administrative penalties. FISCAL EFFECT : According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. State-mandated local program; contains a crimes and infractions disclaimer. COMMENTS : 1)Purpose of the Bill : According to the author: Existing law requires most slate mailers to disclose three things: Who sent it. Who paid to appear on it. And a statement that it doesn't reflect official party positions. However, slate mailers can claim to represent just about any group or cause under the sun. SB 488 is an attempt to shed some light on slate mailers that claim to represent law enforcement, firefighting, and other public safety personnel. This bill would require slate mail organizations to obtain prior consent before using a logo or other emblem that is identical or substantially similar to SB 488 Page 5 one used by a government agency or other organization that represents any of these public safety groups. This bill would also require that a slate mailer purporting to represent one of these groups disclose the total number of members in their organization and the number of members working or living within the county where the slate mailer is sent. Unauthorized use of these logos in slate mailers can mislead the public as they attempt to distinguish between legitimate public safety communications and political advertisements. This bill is not groundbreaking-the law already requires numerous disclosure statements on not only slate mailers but virtually every other type of campaign communication-including mass mail, newspaper, radio and television advertisements. 1)Constitutional Issues : This measure could be interpreted as a violation of the United States and California Constitutions' rights to free speech. While the right to freedom of speech is not absolute, when a law burdens core political speech, the restrictions on speech generally must be "narrowly tailored to serve an overriding state interest," McIntyre v. Ohio Elections Commission (1995), 514 US 334. The United States Supreme Court has been particularly wary of laws that compel political speech. In McIntyre , the United States Supreme Court found that an Ohio law that prohibited the distribution of anonymous campaign literature was unconstitutional. In fact, a federal district court cited McIntyre in two separate cases that raised questions about the constitutionality of California laws that required certain information to be included on slate mailers. In November 1996, California voters approved Proposition 208, which made various significant changes to the PRA. Many of those changes were subsequently repealed or amended through the passage of Proposition 34, which was placed on the November 2000 ballot by SB 1223 (Burton), Chapter 102, Statutes of 2000. Among the provisions of Proposition 208 that were not affected by Proposition 34, however, were provisions that required certain information and specified SB 488 Page 6 disclaimers to be included on slate mailers. Among those provisions was a requirement that slate mailers identify any candidate or ballot measure that had paid to be included in the slate mailer with three dollar signs ($$$), instead of with an asterisk (*), a requirement that certain information and disclaimers be included on every page of a slate mailer instead of appearing at least once on the slate mailer, and a requirement that slate mailers identify contributors who gave more than $50,000 to ballot measures. In California Prolife Council PAC v. Scully (2001), No. Civ. S-96-1965, the United States District Court for the Eastern District of California found that those provisions were unconstitutional, and the Court permanently enjoined them from enforcement. In its decision, the Court found the slate mailer requirements to be "intrusive and extensive" compelled speech that could not be justified by the state's interests in informing voters, avoiding deception, and addressing the potential for corruption. Similarly, in Levine v. Fair Political Practices Commission (2002), 222 F. Supp. 2d 1182, the same District Court issued a preliminary injunction against two state laws governing the content of slate mailers. Those laws required any slate mailer that appeared to represent a political party to include a disclaimer whenever a candidate or position on a ballot measure endorsed in the slate mailer was different from the official endorsement of that political party. In issuing the preliminary injunction, the court concluded that "forcİing] slate mailer publishers to give space to İan] opposing view" was an overly broad way for the state to attempt to protect voters from confusion and fraud. Subsequent to the issuance of the preliminary injunction, the parties in Levine reached a settlement, and the Legislature and the Governor modified the slate mailer disclaimer requirements through the passage of SB 604 (Perata), Chapter 478, Statutes of 2004. In light of these decisions, the provisions of this bill may be susceptible to challenge on the grounds that the bill's requirements impermissibly burden the First Amendment rights of slate mailer organizations and of those candidates and other individuals who use slate mailers to communicate with voters. In particular, provisions of this bill that require certain slate mailers to include a disclosure of the number of members of the organization sending the mailer on the mailer SB 488 Page 7 itself, including the number of members living or working in the county in which the mailer is delivered, could be viewed as compelled political speech that must be narrowly tailored to serve an overriding state interest. 2)Public Safety Organizations Only : Provisions of this bill that require a slate mailer organization to obtain written consent prior to using the logo of a private organization and that require a slate mailer to include the number of members of the organization sending the slate mailer apply only when the slate mailer organization is using the logo of, or purports to represent, public safety organizations. Nothing in this bill would protect private organizations that are not public safety organizations from the misuse of their logos in campaign mailers, nor would this bill require membership figures to be disclosed on slate mailers purporting to represent organizations that are not public safety organizations. The findings and declarations of this bill maintain that it is essential for the public to be able to distinguish between legitimate public safety communications and political messages, and contend that voters may disregard important public safety information if the logos of these public safety organizations are not protected against improper use. 3)Existing Protections : As noted above, existing law already makes it a crime to use an official seal or insignia of a state or local government agency in campaign literature or in a mass mailing with the intent to deceive the voters. In light of these laws, the need to further require a slate mailer organization to obtain written permission from an agency prior to using its logo in a mailer is unclear. While state law does not include similar criminal penalties for the use of the seal or insignia of a private organization in campaign literature with the intent to deceive voters, those private organizations may nonetheless have recourse for the unauthorized use of a logo in a campaign mailing under state or federal trademark laws. 4)Arguments in Support : In support of this bill, the Association for Los Angeles Deputy Sheriffs, the Los Angeles Probation Officers' Union, the Orange County Professional Firefighters Association, and the Riverside Sheriffs' Association, write: SB 488 Page 8 There is public trust given safety organizations on a daily basis. If that trust is broken because of political deception, it might not return. Unauthorized use of logos, insignias, emblems, or trademarks identified with public safety departments, organizations, and professionals also puts a chasm between legitimate communication and political propaganda. If law enforcement, for example, must issue an emergency warning to the public, there will be potential for citizen disregard of the information because it is assumed the message is associated with a political campaign or candidate that is not to be trusted. 5)Arguments in Opposition : The American Association of Political Consultants (AAPC), in opposition to this bill, writes: The AAPC feels strongly that SB 488, as it is currently written, would have a chilling effect on the first amendment's right to freedom of speech and is therefore unconstitutional. Further, recourse for unauthorized use of trademarked logos is already available in existing laws: California Business and Professions Code Division 6. Business Rights: Chapter 2 Model State Trademark Law Sec. 14200-14272 and should not be a part of this legislation. Recently, the Legislative Committee of the AAPC worked with the California Fair Political Practices Commission (FPPC) Chairman's Advisory Task Force to enhance regulations for slate mailers. These new reforms are now in place as a result of the work of the Task Force. AAPC believes that proposed changes to the Political Reform Act of 1974 such as SB 488, would best be addressed through a similar process, prior to legislation being introduced. 6)Previous Legislation : AB 374 (Matthews) of 2001, would have required slate mailers that represented the position of a peace officer or firefighter organization to disclose certain information on the organization's membership. AB 374 was approved by this committee and by the Assembly, but subsequently was amended for an unrelated purpose. SB 488 Page 9 7)Political Reform Act of 1974 : California voters passed an initiative, Proposition 9, in 1974, that created the FPPC and codified significant restrictions and prohibitions on candidates, officeholders and lobbyists. That initiative is commonly known as the PRA. Amendments to the PRA that are not submitted to the voters, such as those contained in this bill, must further the purposes of the initiative and require a two-thirds vote of both houses of the Legislature. REGISTERED SUPPORT / OPPOSITION : Support California Professional Firefighters (Sponsor) Association for Los Angeles Deputy Sheriffs California Clean Money Campaign California Common Cause Los Angeles County Probation Officers' Union Los Angeles Police Protective League Orange County Professional Firefighters Association Riverside Sheriffs' Association Opposition American Association of Political Consultants Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094