BILL ANALYSIS �
AB 1148
Page 1
ASSEMBLY THIRD READING
AB 1148 (Brownley)
As Amended January 18, 2012
2/3 vote
ELECTIONS 5-0 APPROPRIATIONS 12-5
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|Ayes:|Fong, Bonilla, Allen, |Ayes:|Fuentes, Blumenfield, |
| |Mendoza, Swanson | |Bradford, Charles |
| | | |Calderon, Campos, |
| | | |Chesbro, Gatto, Hall, |
| | | |Hill, Ammiano, Mitchell, |
| | | |Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
| | |Nays:|Harkey, Donnelly, |
| | | |Nielsen, Norby, Wagner |
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SUMMARY : Makes significant changes to required disclosures on
campaign advertisements and slate mailers. Specifically, this
bill :
1)Requires, in general, advertisements supporting or opposing a
candidate or ballot measure via radio, television, video,
print, or mass mailing, to include the following:
a) If the advertisement is made via radio, television, or
video, and is authorized by a candidate or an agent of the
candidate, a statement in which the candidate identifies
himself or herself and states that the candidate has
approved the message; or,
b) If the advertisement is not authorized by a candidate or
agent of a candidate, a disclosure statement that
identifies the top three contributors of $10,000 or more to
the committee funding the advertisement, based on
"cumulative contributions," as defined. Requires that this
disclosure statement include the logos, if any, of the top
three contributors if the advertisement is made via
television, video, print, or mass mailing.
2)Requires a committee paying for an advertisement that is not
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authorized by a candidate or agent of a candidate, and that is
subject to the disclosure requirements listed above, to
establish and maintain a committee disclosure Internet Web
site, on which the top five contributors of $10,000 or more to
the committee are disclosed, along with a link to the
committee's campaign filings on the Secretary of State's Web
site.
3)Establishes specific size, font, color, and duration
requirements for the disclosure statements required by this
bill.
4)Requires a slate mailer to include an asterisk (*) next to
each candidate and ballot measure for which payment has been
made for inclusion in the slate mailer.
5)Repeals existing, conflicting disclosure requirements for
campaign advertisements.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, the Fair Political Practices Commission (FPPC) will
incur annual General Fund costs of around $200,000, for the
equivalent of two positions, associated with the initial writing
new regulations and re-writing campaign materials and increased
ongoing costs to provide advice and for investigation and
enforcement. The FPPC could also incur significant costs for
litigation related to the constitutionality of some of the
bill's provisions.
COMMENTS : According to the author, "Campaign spending has
reached unprecedented levels in recent years. During the
November 2010 election in California, nearly $200 million was
spent on ballot measures alone. Although there are limits on
the amount of direct contributions candidates can receive,
funders can make unlimited contributions to candidates through
independent expenditure committees and to ballot measure
committees that have significantly shaped the way California is
governed. However, many of these committees are purposely
established to hide who exactly is funding the campaign messages
that voters see and hear?.AB 1148 will help cast light on
spending in elections by disclosing major funding sources
directly on advertisements. At a time when public confidence in
its elected officials is unequivocally low, strengthening
disclosure requirements on political advertisements is necessary
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to help Californians be better informed and feel more
represented by their government."
Under existing law, a slate mailer must have an asterisk next to
a ballot measure or candidate that appears in the slate mailer
if that candidate or ballot measure has paid to appear in the
slate mailer. However, if someone other than the candidate or
ballot measure committee pays the slate mailer organization to
include a candidate or ballot measure committee in the slate
mailer, no asterisk or other designation is included in the
mailer. So, for instance, if a general purpose committee makes
an independent expenditure by paying a slate mailer to include a
candidate that the general purpose committee has endorsed, the
slate mailer itself would have no indication that the slate
mailer organization had been paid to include that candidate in
the mailer. This bill requires a slate mailer to include an
asterisk next to a candidate or ballot measure if the inclusion
of that candidate or ballot measure has been paid for,
regardless of who paid the slate mailer organization.
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 U.S. 334.
In McIntyre, the United States Supreme Court struck down an Ohio
law that prohibited the distribution of campaign literature that
did not contain the name and address of the person or campaign
official issuing the literature, finding that the law
unconstitutionally restricted the freedom of speech in violation
of the First Amendment to the United States Constitution. In
the case, the State of Ohio argued that the law should have been
upheld in recognition of two important state
interests-preventing fraudulent and libelous statements, and
providing the electorate with relevant information. The Court
found that neither interest was sufficient to justify the
restrictions that the Ohio law imposed on the freedom of
expression.
With respect to the interest in preventing fraudulent and
libelous statements, the Court noted that Ohio already had
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prohibitions against making or disseminating false statements
during political campaigns, and as such, "Ohio's prohibition of
anonymous leaflets plainly is not its principal weapon against
fraud." The second state interest offered by Ohio was the
interest of "providing the electorate with relevant information"
- an interest that is similar to the author's stated reason for
seeking to require disclosure on advertisements as required by
this bill. Here too, however, the McIntyre court found that
such an interest was not sufficient to justify the restrictions
that the Ohio statute placed on freedom of speech and
expression, stating that "�i]nsofar as the interest in informing
the electorate means nothing more than the provision of
additional information that may either buttress or undermine the
argument in a document, we think the identity of the speaker is
no different from other components of the document's content
that the author is free to include or exclude. . . . The simple
interest in providing voters with additional relevant
information does not justify a state requirement that a writer
make statements or disclosures she would otherwise omit."
The McIntyre court made an important distinction between a
requirement that a person file a report with a government agency
to disclose money expended for a campaign advertisement and a
requirement that a person must disclose his or her identity on
the advertisement itself, noting that while requiring a report
to be filed with a government agency "undeniably impedes
protected First Amendment activity, the intrusion is a far cry
from compelled self-identification on all election-related
writings."
In light of the court's decision in McIntyre, and in light of
other court cases that are discussed in detail in the policy
committee analysis, this bill could be susceptible to challenge
on the grounds that it violates the First Amendment's rights to
freedom of speech and freedom of expression by compelling a
person to include speech in an advertisement that he or she may
otherwise choose to omit. It is also possible, however, that
existing state law that requires certain disclosure statements
to be included in political advertisements could be equally
susceptible to challenge.
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
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initiative is commonly known as the Political Reform Act (PRA).
Most amendments to the PRA that are not submitted to the voters,
including those contained in this bill, must further the
purposes of the initiative and require a two-thirds vote of both
houses of the Legislature.
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094
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