BILL ANALYSIS Ó SENATE COMMITTEE ON ELECTIONS AND CONSTITUTIONAL AMENDMENTS Senator Ben Allen, Chair 2015 - 2016 Regular Bill No: AB 700 Hearing Date: 6/21/16 ----------------------------------------------------------------- |Author: |Gomez | |-----------+-----------------------------------------------------| |Version: |6/20/16 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Darren Chesin | | | | ----------------------------------------------------------------- Subject: Political Reform Act of 1974: advertisement disclosures DIGEST This bill changes the content and format of disclosure statements required on specified campaign advertisements in a manner that generally requires such disclosures to be more prominent. ANALYSIS Existing law: 1)Creates the Fair Political Practices Commission (FPPC), and makes it responsible for the impartial, effective administration and implementation of the Political Reform Act (PRA). 2)Requires an advertisement for or against any ballot measure to include a disclosure statement identifying any person whose cumulative contributions are $50,000 or more. Provides that if there are more than two donors of $50,000 or more, the disclosure only needs to include the highest and second highest donors in that order. 3)Requires a committee that supports or opposes one or more ballot measures to name itself using a name or phrase that identifies the economic or other special interest of its major donors of $50,000 or more. Provides that if the major donors of $50,000 or more share a common employer, the identity of the employer must also be disclosed. AB 700 (Gomez) Page 2 of ? 4)Requires a broadcast or mass mailing advertisement supporting or opposing a candidate or ballot measure that is paid for by an Independent Expenditure (IE) to include a disclosure statement identifying the name of the committee making the expenditure and the names of the persons from whom the committee making the IE received its two highest cumulative contributions of $50,000 or more during the 12-month period prior to the expenditure. 5)Provides that when a disclosure of the top two donors is required on an advertisement pursuant to either of the above provisions, only the largest donor needs to be disclosed on an advertisement that is an electronic broadcast of 15 seconds or less or a print advertisement of 20 square inches or less. 6)Provides that no candidate or committee shall send a mass mailing unless the AB 700 (Gomez) Page 3 of ? name, street address, and city of the candidate or committee are shown on the outside of each piece of mail in the mass mailing and on at least one of the inserts included within each piece of mail of the mailing in no less than 6-point type which shall be in a color or print which contrasts with the background so as to be easily legible. If the sender of the mass mailing is a single candidate or committee, the name, street address, and city of the candidate or committee need only be shown on the outside of each piece of mail. If the sender of a mass mailing is a controlled committee, the name of the person controlling the committee shall also be included. 7)Provides that a candidate, committee, or slate mailer organization may not expend campaign funds to pay for telephone calls that are similar in nature and aggregate 500 or more in number, made by an individual, or individuals, or by electronic means and that advocate support of, or opposition to, a candidate, ballot measure, or both, unless during the course of each call the name of the entity that authorized or paid for the call is disclosed to the recipient of the call, as specified. This requirement does not apply to telephone calls made by the candidate, the campaign manager, or individuals who are volunteers. 8)Provides that a person may not make any contribution to a committee on the condition or with the agreement that it will be contributed to any particular candidate unless the contribution is fully disclosed pursuant to Section 84302. This bill: 1)Defines the following terms, for the purposes of this bill: a) "Advertisement" means any general or public communication which is authorized and paid for by a committee for the purpose of supporting or opposing a candidate or candidates for elective office or a ballot measure or measures. "Advertisement" does not include any of the following: i. A communication paid for by a political party committee or a candidate controlled committee established for elective office for the controlling candidate; AB 700 (Gomez) Page 4 of ? ii. A communication from an organization, other than a political party, to its members; iii. Various specified types of communications where the inclusion of disclosures is impractical due to the size or medium of the communication (such as a pen, or sky writing); or, iv. Any other advertisement as determined by regulations of the FPPC. a) "Cumulative contributions" means the cumulative amount of contributions received by a committee beginning 12 months prior to the date of the expenditure and ending seven days before the time the advertisement is sent to the printer or broadcaster. b) "Top contributors" means the persons from whom the committee paying for an advertisement has received its three highest cumulative contributions of $50,000 or more, as specified. 1)Provides that if a contributor appears to qualify as a top contributor but received earmarked funds to make the contribution, the person or committee that earmarked the funds shall be disclosed as the top contributor instead. Requires a person or committee that is transferring earmarked funds to disclose the true source of the funds at the time of the transfer. Provides that funds are "earmarked," for these purposes in the following circumstances: a) The contributor solicited and received the funds for the purpose of making a contribution to the committee paying for the advertisements; b) The funds were given subject to a condition, agreement, or understanding that the funds would be used to make a contribution to the committee paying for the advertisement, as specified; or, c) The contributor had existing funds from a donor and a AB 700 (Gomez) Page 5 of ? subsequent agreement or understanding was reached that all or a portion of the funds would be used to contribute to the committee paying for the advertisement, as specified. 1)Requires an advertisement, as defined, to include a disclosure statement in accordance with the following: a) In the case of an advertisement paid for by a committee that has not received contributions of $2,000 or more in a calendar year: "Paid for by [name of the committee as required to appear on campaign statements]." b) In the case of an advertisement that is paid for by a committee that has received contributions of $2,000 or more in a calendar year: "Paid for by [name of the committee as required to appear on campaign statements]. This committee has major funding from [names of the top contributors to the committee that is paying for the advertisement]." Provides that if the content of the radio advertisement or electronic message names each of the top contributors as major funding sources, the disclosure statement in the advertisement is not required to include the portion that identifies the sources of the committee's major funding. 4)Imposes the following requirements on the disclosure statements required by this bill: a) In the case of an advertisement disseminated by radio or telephone, the statement must be at the beginning or end of the advertisement, read in a clearly spoken manner and in a pitch and tone substantially similar to the rest of the advertisement, and last no less than three seconds. Provides that radio and prerecorded telephonic advertisements are only required to disclose the single top contributor of $50,000 or more. b) In the case of a television or video advertisement, the statement must comply with the following: i. Appear at the beginning or end of the advertisement for a minimum of five seconds in the case of an AB 700 (Gomez) Page 6 of ? advertisement lasting 30 seconds or less, or for a minimum of 10 seconds in the case of an advertisement lasting longer than 30 seconds; ii. Appear on a solid black background on the entire bottom one-third of the screen; and, iii. Include a link to the FPPC's Internet Web site containing a list of the top donors to the committee paying for the advertisement, in the case of advertisements that are paid for by committees that are required to file a list of their top 10 contributors with the FPPC pursuant to existing law. a) In the case of a print advertisement, the statement must appear in a printed or drawn box with a solid white background on the bottom of at least one page, and must include a link to the FPPC's Internet Web site containing a list of the top donors to the committee paying for the advertisement, when applicable per existing law. Newspaper, magazine, or other public print advertisements that are 20 square inches or less are only required to disclose the single top contributor of $50,000 or more. b) In the case of an electronic media advertisement, the statement must comply with the following: i. Be visible for a period of at least four seconds in a type size and font that is clear and conspicuous and contrasts with the background so as to be easily readable by the average person, unless impractical or would severely interfere with the committee's ability to convey the intended message because of the nature of the technology used to make the communication. The FPPC may prescribe by regulation minimal disclaimer requirements if inclusion of the full disclaimer is deemed impractical. ii. Include a hyperlink to an Internet Web site containing the text of the disclosure statement. The Internet Web site is required to remain online for at least 30 days after the election where the candidate or ballot measure was voted upon. iii. If made by a form of electronic media that is audio only, comply with the requirements for radio AB 700 (Gomez) Page 7 of ? advertisements. iv. If made by a form of electronic media that allows users to engage in discourse and post content, or any other social media, the statement is only required to be included on the home page, landing page, or similar location. v. The statement is not required on advertisements made via social media where the only expense or cost of the communication is compensated staff time unless the social media account where the content is posted was created only for the purpose of advertisements governed by the PRA. 5)Specifies requirements for the font type, size, color, and placement of the text of disclosure statements required by this bill. 6)Provides that the disclosure of a top contributor under this bill does not need to include legal terms such as "incorporated," "committee," "political action committee," or "corporation" or their abbreviations, unless the term is part of the contributor's name in common usage. 7)Requires disclosure statements to be updated to reflect any changes in the order of top contributors as follows: a) In the case of television, radio, telephone, or other electronic media advertisements, within seven business days, or within five business days if the change in top contributors occurs within 30 days of an election; and, b) In the case of a print advertisement, including non-electronic billboards, prior to placing a new or modified order for additional printing of the advertisement. 8)Repeals existing, conflicting requirements governing disclaimers and disclosure statements that must appear on specified campaign advertisements, including all of the following: a) A requirement that an advertisement for or against a ballot measure include a disclosure statement identifying the two highest cumulative contributors of $50,000 or more to the committee funding the advertisement; AB 700 (Gomez) Page 8 of ? b) A requirement that a committee that supports or opposes one or more ballot measures must name and identify itself using a name or phrase that clearly identifies the economic or other special interest of its major donors of $50,000 or more in any reference to the committee required by law; and, c) A requirement that an advertisement that is paid for by an IE must include a disclosure statement identifying the name of the committee making the expenditure and the names of the persons from whom the committee making the IE received its two highest cumulative contributions of $50,000 or more during the 12-month period prior to the expenditure. 1)Provides that candidate and committee mass mailing sender identification requirements also apply to candidate controlled committees and political party committees. Provides for these requirements that the "sender" is the candidate or committee who pays for the largest portion of expenditures attributable to the designing, printing, and posting of the mailing which are reportable under existing law. 2) Provides that the existing campaign telephone call disclosure requirements also apply to candidate controlled committees and political party committees. 3)Provides that a person shall not make any contribution to any committee or candidate that is earmarked for a contribution to any other committee or candidate that is earmarked for a contribution to any other committee or candidate unless the contribution is fully disclosed pursuant to section 84302. For purposes of this section a contribution is earmarked if the contribution is made under the following circumstances: a) The committee or candidate receiving the contribution solicited the contribution for the purpose of making a contribution to another committee or candidate, and requested the contributor to consent to such use. b) The contribution was made subject to a condition, agreement, or understanding with the contributor that all or a portion of the contribution would be used to make a contribution to another committee or candidate, including any circumstance in which the contributor identifies the committee or candidate as a potential recipient of the AB 700 (Gomez) Page 9 of ? contribution and the committee or candidate in fact receives all or a portion of the contributor's contribution. c) After the contribution was made, the contributor and the committee or candidate receiving the contribution reaching a subsequent agreement or understanding that all or a portion of the contribution would be used to make a contribution to another committee or candidate, including any circumstance where the contributor identifies the committee or candidate as a potential recipient of the contribution and the committee or candidate in fact receives all or a portion of the contributor's contribution. 12) Makes technical and conforming changes. BACKGROUND Existing Political Advertising Disclaimers . Under the PRA, committees must put "paid for by" disclaimers on campaign advertising, including campaign mailers, radio and television ads, telephone robocalls, and electronic media ads. The following, which is based on a publication produced by the FPPC, discusses disclaimer requirements for committees that purchase advertisements or circulate material supporting or opposing a state or local candidate or ballot measure in California. When is a disclaimer required on political ads or materials? Political committees must include the following disclaimers: a)Mass mailings, including blast campaign emails, must include identification of the sender. b)Paid telephone calls must identify the candidate or committee who paid for or authorized the call. c)Radio and television ads must include a "paid for by" disclaimer under Federal Communications Commission (FCC) law. d)Ballot measure ads and IE ads must include "paid for by committee name" and such ads by primarily formed committees must also list top two donors of $50,000 or more. This applies to television, radio, and electronic media advertisements, robocalls, mass mailings, and print ads such as newspaper ads, billboards and yard signs. AB 700 (Gomez) Page 10 of ? Are the PRA's disclaimer rules the same for all committees and all ads? No. Basic disclaimer rules apply to campaign materials disseminated by a candidate for their own election campaign because it is generally clear to the public that the candidate is sending the communication. Stricter disclaimer rules apply to ballot measure advertisements and IE advertisements on candidates and ballot measures, because it is less clear to the public who is responsible for these ads. What does the disclaimer have to state? The basic disclaimer must state "Paid for by committee name." Ballot measure and IE ads paid for by primarily formed committees must also list top two donors of $50,000 or more and special committee name rules apply. All IE ads for or against a candidate must state that the ad was "Not authorized by a candidate or a committee controlled by a candidate." How must the disclaimer appear? Disclaimers on political ads and literature must be clear and conspicuous so as to be understood by the intended public. Written disclaimers must be printed clearly and legibly. Spoken disclaimers must be clearly audible and intelligible. Updating a disclaimer. When a committee's name changes because of new top donors or otherwise, advertisement disclaimers must be revised. Television, radio, electronic media, or robocalls must be amended within five calendar days. Print media, mass mailings, or other tangible items must be amended every time an order to reproduce is placed. Advertisements in Languages Other than English. Disclaimers on political advertisements should be written or spoken in the same language used in the advertisement. Does a disclaimer have to appear on ALL printed materials or campaign items? AB 700 (Gomez) Page 11 of ? No. A disclaimer is not required on regular-size campaign buttons, pins, bumper stickers, or magnets. It is not required on pens, pencils, rulers, mugs, potholders, key tags, golf balls and similar small campaign promotional items where a disclaimer cannot be conveniently printed. The disclaimer is also not required on t-shirts, caps, hats, and other articles of clothing; skywriting and airplane banners; or committee checks and receipts. COMMENTS 1)According to the author : AB 700 (Gomez and Levine), the California Disclose Act, will dramatically improve disclosure of the top funders on ads for ballot measures and independent expenditures for and against candidates. Knowing the true source of funds for ads will prevent voters from being deceived about who is truly paying for them, help voters better evaluate the credibility and content of ads, and promote greater confidence in the electoral process. Campaign spending has reached unprecedented levels in recent years. In 2012-2014, more than $770 million was spent in California on ballot measure ads and independent expenditure ads for and against candidates. Furthermore, many primarily-formed and general purpose committees that contribute to them are purposely established to disguise who exactly is funding the campaign messages that voters see and hear, hiding behind vague names such as "Californians for Progress." Money is often purposefully channeled through multiple layers of committees or organizations to make it harder to trace and disclose. As a result, the March 2013 PPIC Poll found that 84% of all likely voters, across political ideology, want increased public disclosure of funding sources for signature gathering and initiative campaigns. While it is essential for individuals and organizations in a democracy to be able to communicate effectively and efficiently with voters, it is equally important that voters are not intentionally deceived and elections are not decided upon misinformation. AB 700 will increase transparency of campaign spending in elections by requiring state and local ballot measure ads and independent expenditure ads about candidates to clearly and AB 700 (Gomez) Page 12 of ? prominently list their top three true contributors of $50,000 or more (one for radio ads and robocalls). To limit potential for abuse of broad regulations we see in current code and to maximize clarity and ensure consistency of disclosures, AB 700 proscribes specific rules for the format of disclosures. For example, for video and television ads, AB 700 replaces current fine print disclosures with a clear listing of the top three contributors on the bottom 1/3 of the screen on a solid black background for five seconds (ten seconds for ads longer than 30 seconds), plus the name of the committee paying. To ensure readability of funder names, they must each be listed on a separate line, can't appear in all capital letters, and must be in a contrasting Arial font that is 4% of the height of the screen. Perhaps most importantly, AB 700 uses new earmarking rules originated in the previously-circulating Voters' Right to Know Act initiative to ensure that contributions that are meant for ballot measures or candidates must be disclosed if they're among the top three even if they were passed through multiple layers of committees or other organizations. It is now often impossible for voters to determine the true top funders of ballot measure ads and IE ads for and against candidates. The disclosures required by current law are usually extremely difficult to read, buried in fine print with distracting backgrounds. Disclosures contain significant additional verbiage that makes it harder for viewers to see the major funders that is the most important part of the disclosures. Worst of all is that top contributors are able to avoid being disclosed on ads simply by funneling their contributions through committees with deceptive names, oftentimes purposefully misleading viewers about who really paid for the ads. AB 700 (Gomez) Page 13 of ? 2)Constitutional Issues . This measure could be interpreted as a violation of the United States and California Constitutions' guarantees 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. In ACLU v. Heller (2004), 378 F.3d 979, the Ninth Circuit Court of Appeals struck down a Nevada law that required any published material concerning a campaign to identify the person paying for the publication. In that case, the state of Nevada argued that its law served three state interests, including helping voters evaluate the usefulness of information in a campaign communication, preventing fraud and libel, and furthering enforcement of disclosure and contribution election laws. The court concluded that Nevada failed to demonstrate that its statute was "narrowly tailored to serve an overriding state interest" in accordance with the test established in McIntyre. The court did note in its ruling, however, that "[a]n on-publication identification requirement carefully tailored to further a state's campaign finance laws, or to prevent the corruption of public officials, could well pass constitutional muster." Additionally, supporters of this bill have argued that, notwithstanding the decision in the Heller case, the provisions of this bill nonetheless are constitutional in light of disclosure requirements that were upheld by the United States Supreme Court in Citizens United v. Federal Election Commission (2010), 130 S.Ct. 876. While the Citizens United case is probably best known as the case in which the United States Supreme Court struck down a 63 year old law that prohibited corporations and unions from using their general treasury funds to make IEs in federal elections, in the same case, the Court also upheld certain disclaimer and disclosure provisions of the federal Bipartisan Campaign Reform Act (BCRA) of 2002, also sometimes called "McCain-Feingold" for its Senate authors. The Citizens United case involved a nonprofit corporation (Citizens United) that sought to run television commercials promoting a film it produced that was critical of then-Senator and presidential candidate Hillary Clinton. Because federal law prohibited corporations and unions from using their general treasury funds to make expenditures for AB 700 (Gomez) Page 14 of ? "electioneering communications" or for communications that expressly advocated the election or defeat of a candidate, Citizens United was concerned that the television commercials promoting its film could subject the corporation to criminal and civil penalties. Under BCRA, the film produced by Citizens United and the television commercials promoting that movie were subject to certain disclaimer and disclosure requirements -- specifically, a requirement that televised electioneering communications must include a disclaimer indicating the name of the person or organization that was "responsible for the content" of the advertising. Additionally, each communication was required to include a statement that the communication was "not authorized by any candidate or candidate's committee," and was required to display the name and address of the person or group that funded the advertisement. Finally, under a different provision of BCRA, any person who spent more than $10,000 in a calendar year is required to file a disclosure statement with the Federal Elections Commission AB 700 (Gomez) Page 15 of ? (FEC) identifying the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of contributors in certain circumstances. Citizens United (the corporation) challenged these disclaimer and disclosure requirements as applied to the film and the television advertisements promoting that film. Specifically, Citizens United argued that the disclaimer and disclosure requirements were unconstitutional on the grounds the governmental interest in providing information to the electorate did not justify requiring disclaimers for commercial advertisements. The court disagreed, finding that the disclaimers provided the electorate with important information, helping to ensure that voters were informed, and "avoid[ed] confusion by making clear that the ads are not funded by a candidate or political party." While some of the requirements of this bill are comparable to provisions of federal law that were at issue in Citizens United (for instance, certain disclaimer requirements included in this bill are similar to those required under federal law that were upheld by the court in Citizens United), other requirements in this bill go beyond what is required by federal law, and beyond what was considered by the court in Citizens United. Specifically, the provisions of this bill that require the identities of certain campaign contributors -- entities that were not individually responsible for the content or the production of the advertising -- to be included in campaign advertising go beyond what is required by federal law. In light of that fact, while the court in Citizens United did uphold certain federal disclaimer requirements, it is unclear whether the broader requirements in this bill would similarly be upheld against a constitutional challenge on the grounds that those requirements violate the First Amendment. 3)Anticipated Author's Amendments . The author's office indicates that some additional amendments were inadvertently omitted from the current version of the bill and he wishes to offer those as author's amendments in committee. These new amendments include some technical and clarifying changes as well as some language that would ensure that disclosure requirements intended for television and video display screens do not exceed one-third of the screen as already provided in the bill. AB 700 (Gomez) Page 16 of ? 4)Additional Suggested Amendment . Disclosure statements required by this bill could result in taking up an excessive amount of space on printed advertisements that are larger than those designed to be individually distributed, such as yard signs and billboards. Therefore, staff recommends that the type size specified in new Section 84504.2(b) be decreased from 10 percent of the height of the advertisement to 5 percent of the height of the advertisement, as in current FPPC regulation 18450.4(b)(3)(D). RELATED/PRIOR LEGISLATION SB 52 (Leno of 2013-14) similarly proposed to change the content and format of disclosure statements on specified campaign advertisements to make those statements more prominent, among other provisions. SB 52 died on the Assembly's Inactive file. AB 1148 (Brownley) and AB 1648 (Brownley, from 2011-12) also proposed increasing the prominence of disclosure statements on campaign advertisements, among other provisions. AB 1148 failed passage on the Assembly Floor, while AB 1648 was approved by the Assembly, but was not heard in the Senate. PRIOR ACTION ------------------------------------------------------------------ |Assembly Floor: |60 - 15 | |--------------------------------------+---------------------------| |Assembly Appropriations Committee: |12 - 0 | |--------------------------------------+---------------------------| |Assembly Elections and Redistricting | 4 - 2 | |Committee: | | ------------------------------------------------------------------ POSITIONS Sponsor: California Clean Money Campaign Support: Insurance Commissioner Dave Jones California Alliance of Retired Americans California Church IMPACT California Clean Money Campaign California League of Conservation Voters California Public Interest Research Group (CALPIRG) Consumer Federation of California CounterPAC AB 700 (Gomez) Page 17 of ? Courage Campaign Democracy for America Endangered Habitats League Friends Committee on Legislation of California JERICHO: A Voice for Justice Lutheran Office of Public Policy - California Maplight Money Out Voters In New Progressive Alliance People Demanding Action Public Citizen Represent.Us In addition, the California Clean Money Campaign submitted copies of petitions signed by a little more than 20,000 individuals in support of AB 700. Oppose:Fair Political Practices Commission Howard Jarvis Taxpayers Association -- END --