The Center for Competitive Politics has submitted comments with the Fair Political Practices Commission explaining that the Commission’s interpretation of recent campaign finance court rulings is “fundamentally flawed.”
The FPPC solicited comments about the Commission’s interpretation of campaign finance law, specifically the definition of “express advocacy,” in advance of a Monday hearing.
“FPPC Chairman Dan Schnur has made plain his disdain for the political speech of Californians and his intent to stretch the bounds of regulation,” said Center for Competitive Politics Vice President of Policy Allison Hayward, who authored the comments. “This proposal is a power grab to stifle political speech by administrative fiat.”
“This level of uncontrolled special interest spending on both sides of the aisle has made the legal limits on contributions to candidates almost completely irrelevant,” Schnur said in a recent statement, adding “It may be time for us to take a much closer look at the rules governing the use of independent committees. Those who are planning on funding these types of activities in the general election should consider this as their advance notice.”
FPPC erroneously asserted that only two types of political speech exist: “issue advocacy,” which discusses matters unrelated to an election, and “express advocacy,” which contains “advocacy urg[ing] a particular outcome in an election.” FPPC Chairman Dan Schnur contends that the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission expands the more limited definition of “express advocacy” contained in recent Supreme Court and California court decisions.
“Given California law and precedents, it is hard to see how this line of decisions ‘warrants reconsideration by the Commission of what may now be an unnecessarily restrictive interpretation of what can be regulated as express advocacy.’ Nothing in this line of decisions ‘reconsiders’ the scope of express advocacy. All discuss the limitations the Constitution places on Congress to regulate additional ‘electioneering’ speech. The Court ultimately restricted the speech Congress could regulate in the 30 and 60 day periods before elections. The Court in Citizens United even reiterated the express advocacy standard for expenditures as it was articulated in Buckley v. Valeo,” Hayward wrote.
“California has no electioneering communications statute, nor any law remotely resembling this federal law. Thus, there is no reason to think these cases require or allow any change in interpretation by the FPPC. It would be far beyond the regulatory authority of the FPPC to in effect ‘enact’ an electioneering communications statute (even a disclosure one) via administrative rulemaking, then define ‘expenditure’ using this new broad and unjustified standard.”
Hayward closed her comments with a recommendation that the FPPC not redefine fundamental terms of campaign finance law in the midst of a campaign cycle:
“[T]he FPPC would be abandoning a standard that is familiar, clear, and capable of withstanding legal challenges. It would be turning its back on the 2003 decision in California Pro-Life Council v. Getman. “We know of no change in circumstances that would counsel (or even permit) the FPPC to adopt a different standard, or would justify the disruption and uncertainty that inevitably arises from a change to such a fundamental building block of the state’s campaign finance regime.”
The Center for Competitive Politics is a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights. CCP seeks to promote the political marketplace of ideas through research, litigation and advocacy.
