[IP] another victory for the Elites' Court; another defeat for democracy
Begin forwarded message:
From: Jim Warren <jwarren@xxxxxxxx>
Date: October 31, 2004 12:25:32 PM EST
To: State and Local Freedom of Information Issues
<FOI-L@xxxxxxxxxxxxxxxx>, calfoi-list@xxxxxxxxxxxxxxxxxx
Cc: "Dave Farber: ;Declan McCullagh" <declan@xxxxxxxx>
Subject: another victory for the Elites' Court; another defeat for
democracy
This is Californica-specific, but has appalling import for all the
nation (except, of course, for the "anonymous" mega-wealthy who buy
political favor).
--jim
Edict dooms election-ad reporting rule
Judge strikes down most of Prop. 208's remaining strictures.
By Denny Walsh -- Bee Staff Writer
Published 2:15 am PDT Thursday, October 28, 2004
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."
About the writer:
The Bee's Denny Walsh can be reached at (916) 321-1189 or
dwalsh@xxxxxxxxxxx
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