California’s political watchdog wants other states to follow it into the wiggle room it sees in a recent U.S. Supreme Court ruling that struck down limits and disclosure rules on corporate and union funding of independent political ads in candidate elections.
Fair Political Practices Commission Chairman Dan Schnur sent a letter today to more than 150 state election and campaign-finance officials across the nation, urging them to look more closely at the Citizens United v. Federal Election Commission ruling; he says FPPC lawyers have found language in it that paves the way for increased disclosure.
“Savvy fundraising professionals and campaign legal experts in both major political parties employ huge amounts of imagination and creativity to identify and exploit loopholes that allow their donors to avoid disclosure,” Schnur wrote in the letter. “I urge my fellow reformers in each state of the nation to use the same level of innovation to develop strategies, in an effort to close these loopholes.”
Previously, disclosure was required only when a campaign communication contained specific words or phrases, such as “vote for,” “oppose,” “elect,” etc. But earlier this year, the FPPC adopted a new rule requiring groups that send out campaign messages “expressly advocating” for the election or defeat of a candidate or ballot measure, to disclose who paid for the message – even when those messages do not contain the “magic words” but are “susceptible of no reasonable interpretation, other than as an appeal to vote for or against a specific candidate or measure.”
“It would be fundamentally unacceptable to interfere with the First Amendment rights of those who wish to have their voices heard on the issues of the day,” Schnur’s letter said. But the rights of the voters to know who is paying for those political communications are just as important, and I hope you’ll join me in the fight to protect those rights.”
“Make no mistake: the ongoing and escalating efforts to raise greater and greater amounts of political money and to avoid disclosing the sources of those funds are a bipartisan embarrassment,” he wrote. “One party’s advocates howl with outrage only when their opponents have seized a momentary advantage. The outrage is quickly stifled when the same partisans’ allies find their own opportunity to exploit the rules.”
California law defines two kinds of political speech: issue advocacy and express advocacy. Issue advocacy informs the public of matters unrelated to an election and are essentially unregulated; express advocacy urges a particular outcome in an election and is regulated. Those engaged in this latter, regulated speech must follow state rules requiring disclosure of who gave them money and how it was spent, and must identify within their ads that they paid for the political communications seen or heard by voters. This new disclosure applies to messages appearing in the 60 days before an election.
Schnur, now on leave from his post as director of the Jesse M. Unruh Institute of Politics at the University of Southern California, is a longtime Republican communications and strategy operative.