Thursday, September 26, 2002
Anti-Davis Group Need Not Disclose Donors, Court of Appeal Rules
By KENNETH OFGANG, Staff Writer/Appellate Courts
A Washington, D.C.-based organization that aired television commercials last summer critical of Gov. Gray Davis’ handling of the state’s energy crisis is not required to register as a California political committee, an act that would require it to disclose its donors, the First District Court of Appeal ruled yesterday.
The First Amendment precludes the state from applying its campaign finance rules to advertising that does not specifically refer to an election, Justice Donald Swager wrote for Div. One. Swager, an appointee of former Gov. Pete Wilson, was joined by Justices William D. Stein—named to the court by former Gov. George Deukmejian—and by a Davis appointee, Justice Sandra L. Margulies.
The panel overturned a preliminary injunction granted by San Francisco Superior Court Judge David Garcia and ordered the suit by Davis’ campaign dismissed under the anti-SLAPP law.
Garcia had ordered the American Taxpayers Alliance to comply with the reporting provisions of Proposition 9. The 1974 initiative, also known as the Political Reform Act, requires political committees to register with the secretary of state and to file a list of contributors every six months.
A Fair Political Practices Commission regulation broadly defines political committee to include any group that spends money on a communication that “taken as a whole, unambiguously urges a particular result in an election.” The Governor Gray Davis Committee insisted that the American Taxpayers Alliance falls within that definition because its ads “trashing the Governor” were designed to stir opposition to his reelection and “left a viewer who believed its message no other alternative than to vote against Governor Davis.”
The ATA is headed by Scott Reed, a former executive director of the Republican National Committee. While it has not disclosed its donors, multiple sources have said it is funded by the oil and gas industry, in particular Texas-based Reliant Energy Corp., which reportedly donated more than $500,000.
The Davis campaign argued that the regulation is constitutional under Federal Election Com’n v. Furgatch (9th Cir. 1987) 807 F.2d 857. That case held that the defendant violated the Federal Election Campaign Act by running newspaper ads critical of then-President Jimmy Carter a week before Ronald Reagan defeated him in the 1980 election.
No Election References
The ads never mentioned Reagan and contained no explicit references to the fact that an election was approaching. But they accused Carter of “degrading the electoral process and lessening the prestige of the office” through decisions about how and where to spend public funds, and of “meanness of spirit,” of “divisive and reckless McCarthyism at its worst,” and of seeking to burden the country “with four more years of incoherencies, ineptness and illusion.”
The Ninth Circuit held that a communication would constitute “express advocacy,” subjecting the communicator to the act, if it could be reasonably interpreted, in context, as calling for the election or defeat of a federal candidate.
But Swager, noting that Ninth Circuit rulings are not binding on state courts, pointed out that a 1995 FEC regulation based on Furgatch has been held unconstitutional by the First and Fourth circuits and by several district judges. A similar statute in Iowa was struck down by the Eighth Circuit, he also noted.
Swager agreed with those courts that the First Amendment requires a “bright-line” approach, under which advertising that refers to an individual who is a clearly identified candidate for election is subject to campaign finance rules only if it includes “words that exhort the viewers to take specific electoral action for or against” the candidate.
The case is The Governor Gray Davis Committee v. American Taxpayers Alliance, A096658.
Copyright 2002, Metropolitan News Company