BILL ANALYSIS �
SB 488
Page 1
Date of Hearing: July 5, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
SB 488 (Correa) - As Introduced: February 17, 2011
SENATE VOTE : 28-7
SUBJECT : Political Reform Act of 1974: slate mailers.
SUMMARY : Requires a slate mailer that represents the position
of a public safety organization to include specified information
about the organization's membership. Prohibits the use of a
logo of a governmental organization or of specified
non-governmental organizations in a slate mailer without the
written consent of the organization. Specifically, this bill :
1)Requires a slate mailer organization to obtain express written
consent from a governmental agency prior to using the logo,
insignia, emblem, or trademark of the agency, or a
substantially similar logo, insignia, emblem, or trademark, in
a slate mailer or other mass mailing, if the use of the item
would reasonably be understood to imply the participation or
endorsement of that agency.
2)Requires a slate mailer organization to obtain express written
consent from a nongovernmental organization that represents
law enforcement, firefighting, emergency medical, or other
public safety personnel, prior to using the logo, insignia,
emblem, or trademark of the organization, or a substantially
similar logo, insignia, emblem, or trademark, in a slate
mailer or other mass mailing, if the use of the item would
reasonably be understood to imply the participation or
endorsement of that organization.
3)Requires a slate mailer organization that sends a slate mailer
or other mass mailing that identifies itself or its source
material as representing a nongovernmental organization with a
name that includes the term "officer," "peace officer,"
"reserve officer," "deputy," "deputy sheriff," "police,"
"highway patrol," "California Highway Patrol," "law
enforcement," "firefighter," "fire marshal," "paramedic,"
"emergency medical technician," "public safety," or any other
term that would reasonably be understood to imply that the
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organization is composed of, or affiliated with, law
enforcement, firefighting, emergency medical, or other public
safety personnel, to disclose the total number of members in
the organization identified and the number of members working
or living within the county in which the slate mailer or mass
mailing is being delivered. Requires this disclosure to be
included on the outside of each piece of mail and on at least
one of the inserts included with each piece of mail in no less
than 12-point roman type, which shall be in a color or print
that contrasts with the background so as to be easily legible.
4)Makes various findings and declarations.
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
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each piece of slate mail in no less than 8-point type;
b) A notice, in no less than 8-point type, that consists of
the following statement:
--------------------------------------------------------
| 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 *. |
--------------------------------------------------------
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.
d) The political party affiliation 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)Makes it a misdemeanor for a person to do any of the
following:
a) To use the Great Seal of the State of California in any
campaign literature or mass mailing with intent to deceive
the voters;
b) To use the seal of a city in any campaign literature or
mass mailing with intent to deceive the voters;
c) To use the seal of the California Supreme Court, an
appellate court, or a superior court in any campaign
literature or mass mailing with intent to deceive the
voters;
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d) To use the seal of a county, school district, special or
other district, or any board, commission, or agency of a
local jurisdiction in any campaign literature or mass
mailing with intent to deceive the voters; or,
e) To use the official seal or insignia of any public
entity on a simulated ballot or simulated sample ballot, or
on the envelope in which the simulated ballot or simulated
sample ballot is mailed or otherwise delivered.
5)Creates the Fair Political Practices Commission (FPPC), and
makes it responsible for the impartial, effective
administration and implementation of the Political Reform Act
(PRA).
6)Provides that a violation of the PRA is punishable by
criminal, civil, or administrative penalties.
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:
Existing law requires most slate mailers to disclose
three things:
Who sent it.
Who paid to appear on it.
And a statement that it doesn't reflect
official party positions.
However, slate mailers can claim to represent just
about any group or cause under the sun. SB 488 is an
attempt to shed some light on slate mailers that claim
to represent law enforcement, firefighting, and other
public safety personnel.
This bill would require slate mail organizations to
obtain prior consent before using a logo or other
emblem that is identical or substantially similar to
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one used by a government agency or other organization
that represents any of these public safety groups.
This bill would also require that a slate mailer
purporting to represent one of these groups disclose
the total number of members in their organization and
the number of members working or living within the
county where the slate mailer is sent.
Unauthorized use of these logos in slate mailers can
mislead the public as they attempt to distinguish
between legitimate public safety communications and
political advertisements.
This bill is not groundbreaking-the law already
requires numerous disclosure statements on not only
slate mailers but virtually every other type of
campaign communication-including mass mail, newspaper,
radio and television advertisements.
1)Constitutional Issues : This measure could be interpreted as a
violation of the United States and California Constitutions'
rights 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. The United States
Supreme Court has been particularly wary of laws that compel
political speech. In McIntyre , the United States Supreme
Court found that an Ohio law that prohibited the distribution
of anonymous campaign literature was unconstitutional.
In fact, a federal district court cited McIntyre in two separate
cases that raised questions about the constitutionality of
California laws that required certain information to be
included on slate mailers.
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
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disclaimers to be included on slate mailers. Among those
provisions was 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 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
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.
Similarly, in Levine v. Fair Political Practices Commission
(2002), 222 F. Supp. 2d 1182, the same District Court issued a
preliminary injunction against two state laws governing the
content of slate mailers. Those laws required any slate
mailer that appeared to represent a political party to include
a disclaimer whenever a candidate or position on a ballot
measure endorsed in the slate mailer was different from the
official endorsement of that political party. In issuing the
preliminary injunction, the court concluded that "forc�ing]
slate mailer publishers to give space to �an] opposing view"
was an overly broad way for the state to attempt to protect
voters from confusion and fraud. Subsequent to the issuance
of the preliminary injunction, the parties in Levine reached a
settlement, and the Legislature and the Governor modified the
slate mailer disclaimer requirements through the passage of SB
604 (Perata), Chapter 478, Statutes of 2004.
In light of these decisions, the provisions of this bill may be
susceptible to challenge on the grounds that the bill's
requirements impermissibly burden the First Amendment rights
of slate mailer organizations and of those candidates and
other individuals who use slate mailers to communicate with
voters. In particular, provisions of this bill that require
certain slate mailers to include a disclosure of the number of
members of the organization sending the mailer on the mailer
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itself, including the number of members living or working in
the county in which the mailer is delivered, could be viewed
as compelled political speech that must be narrowly tailored
to serve an overriding state interest.
2)Public Safety Organizations Only : Provisions of this bill
that require a slate mailer organization to obtain written
consent prior to using the logo of a private organization and
that require a slate mailer to include the number of members
of the organization sending the slate mailer apply only when
the slate mailer organization is using the logo of, or
purports to represent, public safety organizations. Nothing
in this bill would protect private organizations that are not
public safety organizations from the misuse of their logos in
campaign mailers, nor would this bill require membership
figures to be disclosed on slate mailers purporting to
represent organizations that are not public safety
organizations. The findings and declarations of this bill
maintain that it is essential for the public to be able to
distinguish between legitimate public safety communications
and political messages, and contend that voters may disregard
important public safety information if the logos of these
public safety organizations are not protected against improper
use.
3)Existing Protections : As noted above, existing law already
makes it a crime to use an official seal or insignia of a
state or local government agency in campaign literature or in
a mass mailing with the intent to deceive the voters. In
light of these laws, the need to further require a slate
mailer organization to obtain written permission from an
agency prior to using its logo in a mailer is unclear. While
state law does not include similar criminal penalties for the
use of the seal or insignia of a private organization in
campaign literature with the intent to deceive voters, those
private organizations may nonetheless have recourse for the
unauthorized use of a logo in a campaign mailing under state
or federal trademark laws.
4)Arguments in Support : In support of this bill, the
Association for Los Angeles Deputy Sheriffs, the Los Angeles
Probation Officers' Union, the Orange County Professional
Firefighters Association, and the Riverside Sheriffs'
Association, write:
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There is public trust given safety organizations on a
daily basis. If that trust is broken because of
political deception, it might not return.
Unauthorized use of logos, insignias, emblems, or
trademarks identified with public safety departments,
organizations, and professionals also puts a chasm
between legitimate communication and political
propaganda. If law enforcement, for example, must
issue an emergency warning to the public, there will
be potential for citizen disregard of the information
because it is assumed the message is associated with a
political campaign or candidate that is not to be
trusted.
5)Arguments in Opposition : The American Association of
Political Consultants (AAPC), in opposition to this bill,
writes:
The AAPC feels strongly that SB 488, as it is
currently written, would have a chilling effect on the
first amendment's right to freedom of speech and is
therefore unconstitutional. Further, recourse for
unauthorized use of trademarked logos is already
available in existing laws: California Business and
Professions Code Division 6. Business Rights: Chapter
2 Model State Trademark Law Sec. 14200-14272 and
should not be a part of this legislation.
Recently, the Legislative Committee of the AAPC worked
with the California Fair Political Practices
Commission (FPPC) Chairman's Advisory Task Force to
enhance regulations for slate mailers. These new
reforms are now in place as a result of the work of
the Task Force. AAPC believes that proposed changes to
the Political Reform Act of 1974 such as SB 488, would
best be addressed through a similar process, prior to
legislation being introduced.
6)Previous Legislation : AB 374 (Matthews) of 2001, would have
required slate mailers that represented the position of a
peace officer or firefighter organization to disclose certain
information on the organization's membership. AB 374 was
approved by this committee and by the Assembly, but
subsequently was amended for an unrelated purpose.
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7)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
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 Professional Firefighters (Sponsor)
Association for Los Angeles Deputy Sheriffs
California Clean Money Campaign
California Common Cause
Los Angeles County Probation Officers' Union
Los Angeles Police Protective League
Orange County Professional Firefighters Association
Riverside Sheriffs' Association
Opposition
American Association of Political Consultants
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094