Edict Dooms Election-Ad Reporting Rule

Judge strikes down most of Prop. 208's remaining strictures.

By Denny Walsh, Bee Staff Writer

A Sacramento federal judge ruled Wednesday that general purpose political committees, including the two major parties, do not have to disclose in advertisements and mailers before Tuesday's election the names of the two largest donors to the committees.

A preliminary injunction issued against the California Fair Political Practices Commission by U.S. District Judge Frank C. Damrell Jr. essentially sounds the death knell for most of what's left of Proposition 208, a sweeping campaign reform initiative approved by state voters in 1996.

A 2002 initiative and a permanent injunction issued by U.S. District Judge Lawrence K. Karlton wiped out most of Proposition 208. Left intact was the part of it requiring committees paying for ads in opposition or support of ballot measures to prominently identify on the ads the committees' two largest contributors of $50,000 or more. Also surviving was a mandate for similar disclosures when committees make independent expenditures for candidates or ballot measures.

But Damrell, citing a landmark 1996 U.S. Supreme Court decision that recognized the "respected tradition of anonymity in the advocacy of political causes," found that the Democratic and Republican parties "have identified an irreparable injury likely to occur unless the injunction is granted."

"In the context of political parties, the true 'speaker' is the political party, whose name is disclosed on the face of the advertisement," the judge wrote in a 16-page order. "In fact, identifying a political party's two largest contributors as the 'speakers' could mislead voters, because these contributors may not endorse the message in the advertisement."

In court papers supporting their injunction motion, the political parties noted instances of that very scenario.

Damrell expressed some concern that the parties waited until less than two weeks before the general election to seek relief.

"As of the issuance of this order, there are just five mail days before the election," he pointed out. "Consequently, much of the asserted injury already has occurred. However, the fact remains that plaintiffs have demonstrated an ongoing harm over the next few days, which has First Amendment implications."

The FPPC argued that the two provisions ensure voters will receive relevant information about "who is doing the talking," and pointed out the Supreme Court's recognition of that as a compelling goal.

But Damrell found such a purpose doesn't carry the day in this instance.

Citing the high court's landmark 1996 opinion and a recent federal appellate opinion relying heavily on it, the judge wrote that the provisions at issue "go beyond the reporting of funds that finance speech to affect the content of the advertisements." The disclosure requirements are a "content-based restriction on core political speech," which demands "the most exacting scrutiny under the First Amendment."

Besides, he added, "voters can obtain daily updated information regarding a speaker's contributors by accessing the (California) secretary of state's online records."

They are far more complete and accurate than the names of "two out of tens of thousands of contributors, many of whom also make sizable contributions," Damrell declared. "This 'visual byte' provides a limited and distorted picture."

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