BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: AB 1322 HEARING DATE:
7/7/09
AUTHOR: HUFFMAN ANALYSIS BY:
Darren Chesin
AMENDED: 6/30/09
FISCAL: YES
SUBJECT
Campaign disclosures: independent expenditures
DESCRIPTION
Existing law defines "independent expenditure" (IE) as an
expenditure made by any person in connection with a
communication which expressly advocates the election or
defeat of a clearly identified candidate or the
qualification, passage or defeat of a clearly identified
measure, or taken as a whole and in context, unambiguously
urges a particular result in an election but which is not
made to or at the behest of the affected candidate or
committee.
Existing law requires an advertisement supporting or
opposing a candidate that is paid for by an IE to include a
statement that it was not authorized by a candidate or
committee controlled by a candidate.
Existing law requires a broadcast or mass mailing
advertisement supporting or opposing a candidate or ballot
measure that is paid for by an IE to include a disclosure
statement that identifies both of the following:
The name of the committee making the IE; and,
The names of the persons from whom the committee making
the IE has received its two highest cumulative
contributions of $50,000 or more during the 12-month
period prior to the expenditure.
Existing law requires the Secretary of State (SOS) to
prepare and disseminate the statewide voter pamphlet which
must contain all of the following:
A complete copy of each state ballot measure, a copy of
the specific constitutional or statutory provision, if
any, that each state measure would repeal or revise, a
copy of the arguments and rebuttals for and against each
state measure, and a copy of the analysis of each state
measure.
Tables of contents, indexes, art work, graphics, and
other materials that the SOS determines will make the
ballot pamphlet easier to understand or more useful for
the average voter.
A notice indicating that additional copies of the ballot
pamphlet will be mailed by the county elections official
upon request.
A copy of the California Voter Bill of Rights.
If the ballot contains an election for the office of
United States Senator, information on candidates for
United States Senator. A candidate for United States
Senator may purchase the space to place a 250-word
statement.
If the ballot contains a question on the confirmation or
retention of a justice of the Supreme Court, information
on justices of the Supreme Court who are subject to
confirmation or retention.
If the ballot contains an election for the offices of
President and Vice President of the United States, a
notice that refers voters to the Secretary of State's
Internet Web site for information about candidates for
the offices of President and Vice President of the United
States.
This bill specifies the text and format in which a
disclosure must appear when such disclosures are required
on certain IEs. Specifically, this bill requires, when an
advertisement supporting or opposing a candidate that is
paid for by an IE is required to contain a statement that
the IE was not authorized by a candidate or committee
controlled by a candidate, that the statement identify the
name of the committee that purchased the advertisement.
This bill requires, in the case of an IE that is a printed
advertisement, that the statement be in boldface type, be
prominently displayed, and be in substantially the
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following form:
"NOTICE OF INDEPENDENT EXPENDITURE: This
communication is neither approved nor authorized
by ____ (ANY CANDIDATE), in the ____ district.
It is paid for by COMMITTEE NAME, a committee
making independent expenditures. The donors to
this committee are listed at www.____."
This bill would require, for committees filing with the
SOS, that the aforementioned disclosure statement must list
the SOS's Internet web site address. For committees that
are not required to file with the SOS, the statement must
include an Internet Web site address that provides the
following information about all of the donors who have
contributed a cumulative amount of $100 or more to the
committee making the independent expenditure: name of
contributor, payment type, city and state, contribution
amount, transaction date, and filing date. The Web site
must be updated to reflect filing updates. If the local
agency with which the committee files does not maintain an
Internet Web site with the donor information, the committee
must create one.
This bill would require the SOS to include in the statewide
voter pamphlet information on how voters can determine who
is funding campaigns and campaign-related communications,
when that information can be included without increasing
the number of pages in the ballot pamphlet. The SOS shall
include a statement describing the types of campaign
contributions, including applicable contribution limits and
the role of IEs.
This bill also makes specified Legislative findings and
declarations regarding IEs.
BACKGROUND
Federal Disclosure Requirements Existing federal law
requires all federal campaign communications which are not
authorized by a candidate for federal office to include a
disclaimer indicating that the "communication is not
authorized by any candidate or candidate's committee" (2
U.S.C. 441d(a)(3)). In Federal Election Commission v.
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Public Citizen (2001) 268 F.3d 1283, the Eleventh Circuit
Court of Appeals upheld this requirement, ruling that the
requirement strikes an "appropriate balance" between "the
governmental interest in protecting the overall integrity
of the election process and the right . . . to engage in
protected political speech."
In upholding the requirement, the court enumerated three
governmental interests that are served by requiring
campaign communications that are not authorized by
candidates to contain a disclaimer indicating that fact.
First, by immediately informing voters that the campaign
communication was not authorized by a candidate, the
disclaimer may assist voters in understanding that such a
communication may not accurately present that candidate's
views on an issue. Second, the disclaimer may prevent
voters from "mistakenly concluding that a particular
candidate will be especially responsive to the interests
advanced in that communication." Third, because "a number
of voters evaluate candidates based upon a candidate's
character and integrity," and because candidates have no
control over the content or tone of IEs, the disclaimer
"prevents the voting public from mistakenly attributing an
advertisement that makes a personal attack on a candidate
to an opposing candidate who had nothing to do with such
tactics."
Additional Information in the Ballot Pamphlet . When extra
space is available in the statewide voter pamphlet, the SOS
usually adds information deemed of interest and help to
voters including, but not limited to, the following:
Instructions on how to vote by mail and at polling place
(including rights for voters with disabilities).
Poll worker recruitment information.
Contact information for all 58 county elections offices.
Rights and options for "decline-to-state" (DTS" voters in
relevant elections.
Definitions and descriptions of the different types of
ballot measures (i.e., referendum vs. initiative vs.
legislative measure).
Information on provisional ballots: what they are and
voter rights.
Information on how to find your polling place.
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Where to find information on non-statewide candidates.
A disclaimer about pro/con ballot measure arguments
(i.e., the SOS does not write and has no authority to
check their veracity or change anything without a court
order).
Under this bill, information regarding campaign financing
and independent expenditures would take precedence over the
above information when extra room is available in the
statewide voter pamphlet.
COMMENTS
1.According to the author , an independent expenditure is a
political activity intended to assist or oppose a
specific candidate for office which is made without their
cooperation, approval, or direct knowledge. Most
commonly, this takes the form of advertising. In some
cases, IEs may far exceed direct spending by the
candidates' campaigns. The easy availability of powerful
financial resources has encouraged many private interests
to sway elections outcomes through IEs.
According to the Center for Governmental Studies,
California voters rely heavily, if not exclusively, on
paid campaign advertisements for ballot information.
These paid ads, crafted to influence voter opinion, are
often misleading or deceptive. Campaign ads are often
imbalanced and skewed heavily toward the side with the
most money. Voters are not always aware of who supports
or opposes a campaign message. By mandating prominent
disclosure with clearer messages for campaign ads, voters
can be better informed about the interests behind the
advertisement.
According to the June, 2008 FPPC report on IE's, there is a
growing trend toward concealing the identity of
contributors to IE committees from the public. IE
committees make it easier to hide the true source of
contributions. For the average voter, it involves far too
much detective work to figure out who is really behind a
particular IE committee or effort.
Current law requires a broadcast or mass mailing
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advertisement supporting or opposing a candidate or
ballot measure that is paid for by an IE to include a
disclosure statement that identifies the IE committee and
the names of the two highest contributions of $50,000 or
more to the IE. Current law also requires an
advertisement supporting or opposing a candidate that is
paid for by an IE to include a statement that it was not
authorized by a candidate or a committee controlled by a
candidate.
This bill expands upon existing disclosure requirements to
better inform voters through the disclosure statements on
campaign communications about who is funding the campaign
advertisement. It is needed in light of the growing use
of IEs and the common, though erroneous, belief that IEs
are approved by the candidate. It is particularly
troublesome when IEs promote a candidate by ascribing to
that candidate views actually at variance with his/her
beliefs; or create the false impression that negative ads
were approved by a particular candidate. Full disclosure
allows voters to make informed decisions before casting
their ballots.
2.Related Legislation : AB 7 (Krekorian), which is also
being heard in this committee today, contains a similar
requirement regarding disclosure of an Internet website
address where contributor information can be accessed.
PRIOR ACTION
Assembly Elections and Redistricting Committee:7-0
Assembly Appropriations Committee: 16-0
Assembly Floor: 78-0
POSITIONS
Sponsor: Author
Support: Fair Political Practices Commission
League of Women Voters of California
Oppose: None received
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