FPPC expands express advocacy regulation

 

As expected, Dan Schnur announced today that the era of “magic words” in California is over.

At a Fair Political Practices Commission hearing commissioners voted to direct staff to craft a regulation that would interpret the definition of “express advocacy”—ads containing an appeal to vote for or against a candidate—as including the “functional equivalent” of express advocacy.

As CCP has explained, Schnur’s reasoning is “fundamentally flawed.”

“FPPC Chairman Dan Schnur has made plain his disdain for the political speech of Californians and his intent to stretch the bounds of regulation,” CCP vice president of policy Allison Hayward said recently. “This proposal is a power grab to stifle political speech by administrative fiat.”

Hayward spoke at the FPPC hearing today, reiterating these concerns. She also published an op-ed in the FlashReport detailing the issue.

Nonetheless, Schnur’s mind was made up. He published an op-ed in Capitol Weekly today detailing his interpretation of the state of campaign finance regulation and why he thought the FPPC was justified in expanding the express advocacy definition.

Nonetheless, as CCP noted in July, the FPPC has 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 to include the “functional equivalent of express advocacy” as defined in Wisconsin Right to Life v. Federal Election Commission.

WRTL and Citizens United were both electioneering communications cases, not express advocacy cases. It’s worth reexamining the written comments submitted by Hayward on this point:

“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.”

This isn’t just about disclosure. Express advocacy is also the trigger for many campaign finance restrictions.

No matter. Schnur was clearly intent on twisting the law to conform to his desire to regulate as much political speech as possible. Until Nov. 3, the existing standard of “explicit words of advocacy” will apply. But in the next election cycle—assuming no one challenges this regulatory overreach—the new standard will go into effect.