BILL ANALYSIS �
SB 26
Page 1
Date of Hearing: June 11, 2013
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 26 (Correa) - As Introduced: December 3, 2012
SENATE VOTE : 29-8
SUBJECT : Political Reform Act of 1974: slate mailers.
SUMMARY : Requires the text of disclaimer statements that are
included on slate mailers to be larger and more prominently
displayed. Specifically, this bill :
1)Requires the following "Notice to Voters," which is currently
required to be printed on a single side or surface of a slate
mailer where a candidate or ballot measure has paid to appear,
to be printed instead on each side or surface of the slate
mailer that includes a candidate or ballot measure that has
paid to appear in the slate mailer:
--------------------------------------------------------
| 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 *. |
--------------------------------------------------------
2)Increases the minimum font size, from 8-point type to 10-point
type, and requires the information to be printed in black on a
solid white background, instead of being in a color or print
that contrasts with the background, for the following
information that is required to be included in a slate mailer:
a) The name, street address, and city of the slate mailer
organization or primarily formed committee responsible for
sending a slate mailer; and,
SB 26
Page 2
b) The "Notice to Voters" described above.
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
each piece of slate mail in no less than 8-point type;
b) The "Notice to Voters," as described above, in no less
than 8-point type and in a color or print which contrasts
with the background so as to be easily legible.
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, provided that the
SB 26
Page 3
asterisk is not required to be larger than 10-point
boldface type.
d) The political party designation 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)Creates the Fair Political Practices Commission (FPPC),
and makes it responsible for the impartial, effective
administration and implementation of the Political Reform
Act (PRA).
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:
During the November General Election, slate mailers were
sent to voters that superimposed the notice to voters in a
white font over a picture of an eagle's white feathers
rendering the notice extremely difficult to find let alone
read. SB 26 would strengthen the Political Reform Act and
FPPC regulations by requiring that both the sender
identification and the notice to voters are printed in
larger (10-point), black type against a solid white
background so they cannot be intentionally obfuscated. SB
26 would also require the notice to voters to be printed on
each side or surface where any paying candidate or ballot
measure appears in the slate mailer which will make this
important information more obvious and accessible.
2)Existing Disclaimer Printing Requirements : In support of this
bill, the author references a slate mailer that was sent
during the November 2012 general election in which the
required "Notice to Voters" was printed in a white font over a
picture of an eagle's white feathers, which made the
disclaimer difficult to read. Such placement and printing of
the "Notice to Voters" appears to violate provisions of
SB 26
Page 4
existing law.
As indicated above, the PRA requires the "Notice to Voters" to
be printed in "a color or print which contrasts with the
background so as to be easily legible." Regulations adopted
by the FPPC to implement this requirement specifically require
the "Notice to Voters" to appear "on a plain background, not
superimposed over an illustration or a patterned background,"
and require a "reasonable degree of color contrast" between
the text of the disclaimer and the background. The
regulations further provide that disclaimers that are "printed
in black text on a white background or a similar degree of
color contrast between the background and the text of the
disclaimer" are examples of "reasonable degree of color
contrast" for these purposes (2 Cal. Code of Regs. Section
18435.5). Because the disclaimer in the slate mailer
described by the author was not printed on a plain background,
and because white text on a white background does not appear
to be a "reasonable degree of color contrast," it appears that
the slate mailer described by the author is not consistent
with the existing requirements governing slate mailers.
3)Constitutional Issues : 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 disclaimers to be included on slate mailers. Those
provisions included 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 (including the "Notice to Voters") 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
SB 26
Page 5
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.
Opponents of this bill argue that the requirement for the
"Notice to Voters" to be printed on each surface of a slate
mailer that includes a candidate or ballot measure that has
paid to appear in the slate mailer likely is unconstitutional
in light of the court's injunction in the California Prolife
Council PAC case. While this bill requires a slate mailer to
include the "Notice to Voters" in multiple locations on a
slate mailer in certain circumstances, which could raise
similar concerns to those discussed by the California Prolife
Council PAC court, the provisions of this bill are
distinguishable from the provisions that were enjoined by the
court in the California Prolife Council PAC case.
The provisions of law that were enjoined in the California
Prolife Council PAC case required the "Notice to Voters" to
appear on every page of a slate mailer, while the provisions
of this bill require the "Notice to Voters" to be included
only on pages in the slate mailer that include candidates or
ballot measures that have paid to appear in the slate mailer.
Thus, under the provisions of this bill, a page of a slate
mailer that did not contain any candidates or ballot measures,
or that contained only candidates and ballot measures that did
not pay to appear in the slate mailer, would not be required
to include the "Notice to Voters," whereas that notice would
have been required on that page under the law that was
enjoined in the California Prolife Council PAC case.
By tying the requirement for the "Notice to Voters" to appear on
a page of a slate mailer to pages that include a candidate or
ballot measure that paid to appear in the slate mailer, this
bill is more narrowly focused than the requirement that was
enjoined by the California Prolife Council PAC court. Because
candidates and ballot measures that pay to appear in a slate
mailer are required to be accompanied by an asterisk in the
slate mailer, requiring the "Notice to Voters" to appear on
any page that includes a candidate or ballot measure that has
paid to appear in the slate mailer will ensure that
information about the meaning of the asterisk that accompanies
the listing of that candidate or ballot measure appears on the
SB 26
Page 6
same page as the asterisk. It is unclear whether this
distinction is sufficient to protect the provisions of this
bill from a court challenge in light of the constitutional
concerns raised in the California Prolife Council PAC case.
4)Arguments in Opposition : In opposition to this bill, the
American Association of Political Consultants writes:
SB 26 would require slate publishers to print a
disclaimer in multiple locations on their mail. This
requirement was enjoined in the Proposition 208 case.
The court ruled a requirement of multiple placements
of the disclaimer in slate mail represents a taking of
space otherwise available for protected political
speech without any advancement of a legitimate state
interest in disclosure. The court found that
requiring slates to print disclaimers in multiple
locations singled out slate mail for treatment
different from that which applies to any other
political mail or any other form of political
communication. SB 26 would also require that slate
disclaimers be printed in 10 pt. type. The court found
printing the disclaimer on the front of a slate in 8
pt. bold type is sufficient to serve the state's
interest in disclosure?. Existing state law sets
requirements for the size and legibility of slate
disclaimers. The issues raised in SB 26 can be
resolved by enforcement of existing state law. No new
legislation is required.
5)Previous Legislation : SB 488 (Correa), Chapter 865, Statutes
of 2012, requires a slate mailer that represents the position
of a public safety organization to include specified
information about the organization's membership, including the
number of members of the organization, as specified. Earlier
this year, a corporation that publishes slate mailers filed a
lawsuit in federal district court challenging certain
provisions of SB 488, contending that those provisions
violated the First and Fourteenth Amendments to the United
States Constitution. That lawsuit is pending.
6)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
SB 26
Page 7
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 Common Cause
League of Women Voters of California
Opposition
American Association of Political Consultants
Landslide Communications, Inc.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094