When Californians turn on their television sets this fall, they will be treated to an onslaught of campaign messages on behalf of the candidates and ballot initiatives vying for their support in the November election. Many of those ads will include the identification of the campaigns’ funders, allowing voters to find out for themselves the sources of the money that has financed those paid messages. But in addition there will be large numbers of advertisements whose sponsors are identified in a much more nebulous manner.
We are accustomed to seeing disclosure provided at the conclusion of an advertisement or at the bottom of a mailer from groups with names like “The Golden State Prosperity Committee” or “Californians for Puppies, Orphans and Ice Cream”, but when advertisements try to get you vote for or against a candidate with no disclosure at all, it’s entirely reasonable for a frustrated voter to pose the same question that Butch once asked of Sundance: “Who are those guys?”
The courts have long held that, in political circles, money is equivalent to speech and they have grappled for many years over how to balance the public’s right to know who is funding a political campaign against the equally important right to protect an individual’s free speech. The imperfect solution that existed until earlier this year was the distinction between “express advocacy,” communications calling for a particular action on the part of the voters, and “issue advocacy” communications where the desired outcome is to foster greater awareness of matters of public policy. The distinction between these two types of committees was based on a distinguishing characteristic of so-called “magic words” used in express advocacy that urged electors to “vote for,” “support,” “elect,” “vote against,” “defeat,” or “reject” a particular candidate.
When groups engage in express advocacy, they have to periodically report where they got their money and include this on their ads. The same is not required for issue advocacy,
But recently, the US Supreme Court determined in Citizens United v FEC that either those magic words, or their “functional equivalent,” which “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate” can trigger this campaign disclosure. Here the intent of the communication is to motivate you to vote for or against someone, even if it doesn’t explicitly tell you to vote.
As a former campaign practitioner, I viewed the Citizens United decision as a logical and expected example of political law catching up with political reality. Over the course of almost two decades in campaign politics, I rarely saw a political advertisement created by the candidate’s own campaign that used language as specific and ham-handed as “vote for Smith.” Similarly, a recent study by the Brennan Center for Justice demonstrated that ninety percent of advertisements run by candidate campaigns did not use that type of language. This raises the obvious question as to the relevance of a requirement that is almost entirely meaningless to the practical work done by candidate campaigns.
But logic and law do not always accompany each other so easily, and I quickly saw the necessity of soliciting broad and in-depth information from multiple sources as critical to our efforts. Over the last several weeks, I have spoken with a wide range of political and legal experts, including several of the proposal’s fiercest critics. I requested that FPPC staff convene a public hearing and specifically invited those critics to attend and participate. The political community has been extremely cooperative throughout this process, providing extensive written correspondence as well as valuable information and suggestions transmitted verbally. They have been responsive to my questions and requests for clarifications, and have provided useful guidance and raised legitimate concerns for my fellow Commissioners and me to consider. In addition, I have spoken with practicing attorneys and law professors with no direct stake in the outcome of this debate, but whose experience and insights were extremely valuable as well.
As commissioners, we obviously rely on the advice of FPPC staff as well. Per my request, our legal team has provided us with not only information but strong opinions as to the advisability of clarifying our regulations. They have outlined their thinking and directly addressed questions and criticisms of the proposal in no fewer than three separate memoranda for public consumption. For those who have followed the Commission’s deliberations in the past, it is clear that while we take the recommendations of staff very seriously, we do not automatically accept that advice and frequently decide to pursue other courses of action.
No matter what the Commission decides in tomorrow’s meeting, no one should believe that the process through which the decision was made was anything other than open, accessible and designed to elicit as much input from as wide a range of sources as possible.
The opponents of the proposed action have focused their arguments on a passel of procedural matters, legitimate and welcome questions including the Commission’s authority to act in this matter, the relevance of a federal court decision on state law, and on the question of whether clarifying an existing regulation or passing new legislation is a more appropriate approach th
rough which to follow the court’s guidance. Each of those questions and several others have received a great deal of my time and attention as I have sought to identify the best and most legally tenable way to move forward.
But the central policy question at stake in today’s hearing is much easier to frame: do voters benefit from having additional information regarding the source of funding for political communications available to them before they cast their ballots?
During my time as an advisor to Senator John McCain during his 2000 run for the presidency, the debate over his campaign finance reform package was an omnipresent part of the campaign dialogue. The strongest supporters of his legislation and the most stalwart opposition agreed on only one thing: the necessity of broader disclosure and increased transparency in the area of campaign financing. I took the opponents of campaign finance reform at their word; so now, as the FPPC explores possibilities for broader disclosure, I have been disappointed by their cynicism and subsequent lack of support for our current proposal.
Their most consistent arguments are based on the idea that such an action would violate the First Amendment by interfering with the right to free speech. But increased disclosure does not prohibit free speech. The Court’s decision in Citizens United merely requires the identification of those who pay for that speech, a much less intrusive standard.
A more reasonable argument is that the elimination of the “magic words” threshold for express advocacy creates a less definitive standard for political communications than currently exists. Some have suggested applying an even more exacting measure similar to the one that is imposed upon issue ads costing $50,000 or more and containing any reference to a state candidate appearing on the ballot in a communication that takes place within 45 days of an election. Speaking not for the Commission but as an individual who will return to the private sector early next year, I would be intrigued to see if that bright line standard (along with other appropriate modifications) could progress through the legislative process in the 2011-12 session.
It is undeniable that there are competing priorities involved here, and the courts have struggled for many years with the balance between the benefits of public access to information before voting and of the ability for citizens to freely speak on campaign-related matters without the imposition of overly burdensome regulation. Wrestling with these issues within campaign finance law is in a constant state of evolution, but for now, the Supreme Court has determined the appropriate balance and provided necessary guidance for our Commission as we debate the best way to clarify a regulation that has existed on our books for more than three decades.
Finally, the question arises as to the timing of this proposed decision. There are 78 days before this election, which, in my experience, is 77 more days than a campaign professional should need to edit a campaign advertisement or mailer. But I also recognize the undeniable inconvenience caused by a necessary recalibration of campaign strategy, not just for the sponsors of a multi-million dollar independent committee but for everyday citizens hoping to find a way to have their voices heard during this season’s election debate. Just because we can direct FPPC staff to act on this re-clarified regulation immediately does not necessarily mean that we should.
The vigor with which representatives of both political parties and representatives of both business and labor have weighed in on this clarification suggests to me that neither side of the state’s fiercest ongoing political debate will realize an advantage from this level of broader disclosure. Disclosure knows no political ideology.
I approach tomorrow’s meeting with the same open mind and eager anticipation for considered discussion and further clarification that I have brought to the numerous conversations and correspondence in which I have participated over the last several weeks. But absent new information from the opponents of the proposal or a lack of satisfactory answers to the questions they pose, I will be satisfied that the clarification of the existing FPPC regulation effectively balances the free speech we treasure with the disclosure needed to ensure an informed electorate: the foundation of our democracy.