Conservative political law observers have been rather pleased with the U.S. Supreme Court’s series of fairly recent rulings that have recognized the primacy of the First Amendment in political speech and have rolled back some infringing rules, namely, most of the McCain-Feingold "reforms," which would have had the Federal Election Commission actually banning books that mention people who are candidates for Federal office.
But the Roberts’ Court’s stalward support of free speech hasn’t resonated well at the Fair Political Practices Commission in Sacramento, which is apparently trying to revive in California the type of book-banning rules the Supreme Court has turned back nationwide. Today at 10:00 am, the FPPC will be holding an "interested persons" meeting at its headquarters to "elicit public input on possible Commission action focused on the Commission’s interpretation of ‘express advocacy.’" In nonlawyer talk, that means "hold onto your wallets" if you care about free speech.
"Express advocacy" is generally defined as a communication that advocates the election or defeat of a clearly identified candidate for public office. The U.S. Supreme Court first held in 1976 in the landmark case of Buckley vs. Valeo, and again in recent cases known as Wisconsin Right to Life and Citizens United, for a very narrow interpretation of "express advocacy." Since "express advocacy" sets up a basis for political election law regulation, the interpretation is very important as to issues such as whether contribution limits apply, or whether public disclosure rules apply to the communication, or whether some sort of disclaimer is required.
California law has followed the Federal trend and some observers might say has been even more free speech-oriented. In 2002, in the California case of Gray Davis v. American Taxpayer Alliance, our own Court of Appeal held that even though Gray Davis was a clearly identified candidate in a TV ad that criticized his energy policy positions, that because the ad did not contain words of express advocacy, it was not subject to regulation.
That decision makes sense. Office holders should not be shielded from criticism of their performance in office simply because they might run for office again sometime, or even because a campaign is near.
Nevertheless, the FPPC is clearly embarking on a regulatory path — and right before an election mind you — to change the rules against the trend of court decisions. Their change would logically result in "book banning" for non-complying publishers, just as McCain-Feingold. This is not a very positive commentary on the status of election regulation in California and let us hope the Commission actually listens to the comments it will receive today.