BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 488
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          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 








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            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 








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               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;








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             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 








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               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 








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            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 








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            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:









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               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.









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           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