BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 26
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          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,









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             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  








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               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
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            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  








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            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  








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            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  








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            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