[EL] Citizens-U, prospectively

[Jesse Mainardi]

A little over a year ago California's Fair Political Practices
Commission made regulatory changes which now provide that certain
communications without the typical "magic words" -- e.g., communications
saying "Only Nancy Brown can clean out City Hall" and "Bob Boone is an
unqualified, special-interest puppet" -- will nevertheless constitute
IEs and thus trigger state disclosure requirements, if they are made
within 60 days of an election, because they are "susceptible of no
reasonable interpretation other than as an appeal to a vote for or
against a specific candidate."  (2 Cal. Code of Regs. section
18225(b)(2); link below.)  However, the regulation specifically exempts
issue advocacy from this rule.

 

http://www.fppc.ca.gov/legal/regs/current/18225.pdf

 

Jesse Mainardi 
The Sutton Law Firm 
150 Post Street, Suite 405 
San Francisco, California 94108 
PH: 415.732.7700 (firm) 
PH: 415.732.4506 (direct) 
FX: 415.732.7701 
EM: jmainardi at campaignlawyers.com <mailto:jmainardi at campaignlawyers.com>



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From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Roy
Schotland
Sent: Wednesday, February 29, 2012 2:08 PM
To: law-election at uci.edu
Subject: Re: [EL] Citizens-U, prospectively

 

Interesting exchanges were here recently about media treatment of CU,
which some would say over-demonized it, bad as the opinion is.  

     Today, only a few sentences at the end below about what's behind
us-- but first about Disclosure.

 

The pending new "DISCLOSE" bill, now free of the fatal flaws in the
version tried when the House was Democratic, faces a tough turf in
Congress.  But aren't the odds for fine state statutes favorable in at
least a notable number of significant States?  Most State law is
obsolete, requiring disclosure only for funds sponsoring Magic Words
ads.  When I ask "What State has an effective statute?", I'm sent to
ones that turn out to be limited to Magic Words or are otherwise
ineffective.  So far as I've been able to find, Maryland adopted the
best recent statute-- but it was amended right after enactment,
restoring the Magic Words requirement.

     Of course state law can't do what the Feds can do, but disclosure
in several significant States would be huge on its own and have powerful
ripples.  

     Question 1:  which State(s) if any has a statute that requires
disclosure of fudning sources for independent spending?  At very least
for all broadcast but hopefully also mass mailings, robocalls, etrc.
...?

     Question 2:  in which if any States are efforts pending to get such
a statute?

 

Last, to look back briefly at the "reception" of Citizens-U:  It hasn't
been only the media that, to use Justin Levitt's perfect words, were
"disproportionately 

rabid[,] . . . over-overwrought."  No less a scholar than Ronald Dworkin
wrote of  The Decision That Threatens Democracy (ignoring that half our
50 States allowed corporate spending --were those States not
democracies?). 

      Adam Liptak, almost immediately after CU came down, wrote in the
Columbia Law School Magazine, quoting several Columbia profs, that "the
central holding ... was neither as revolutionary nor as consequential as
some critics claimed....  The floodgates ... [had been] already open."
Later Rick Hasen put it so well:  "[CU] makes 'the ask' so much easier."
(For excerpts, see 20 Corn.J.L.&P.P. 753.)

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