The state campaign watchdog agency will consider next week approving a staff recommendation that would effectively broaden the scope of advertisements subject to independent expenditure disclosure requirements.
Current rules require groups to disclose the sources and contributors of political advertising that meets the definition for "express advocacy," communication that advocates for the election or defeat of a candidate or measure. Ads that focus on a specific issue without specifically advocating for a particular vote are not subject to the same requirements, even if the issue relates to the candidate or election.
Though current regulations leave the door open for speech that, "taken as a whole and in context... unambiguously urges" a result in an election, the regulations have been restricted by the court rulings interpreted as limiting the definition to speech that contains "magic words," such as "vote for" or "reject."
But Fair Political Practices Commission officials say recent U.S. Supreme Court decisions, including a line in this year's Citizens United v. Federal Election Commission ruling, allows enforcement officials to look beyond the "magic words" requirement, suggesting that they direct staff to once again consider the full regulation in its enforcement efforts.
"These recent Supreme Court decisions establish beyond doubt that 'magic words' are not a constitutionally mandated component of an advertisement that may lawfully be regulated, if the ad constitutes the 'functional equivalent of express advocacy' as that term is used by the court," FPPC senior counsel wrote in a memo to the commission.
Under that change, some communication that currently falls under the "issue advocacy" definition would be subject to disclosure requirements for express advocacy independent expenditures.
Campaign attorneys argued at a recent public hearing on the proposed change that the Supreme Court ruling was specifically targeting the practice of "electioneering" and would not trump a 2002 state Supreme Court decision interpreted as directing the commission to look for the "magic words." They also argued that the definition used by enforcement officials should not be changed to close to an election.
The commission will take up the recommendation at its Aug. 12 meeting. Read the full memo here.
Commissioners will also take up recommendations by a subcommittee on online political activity. The committee issued today a 20-page report calling for new rules for disclosure and reporting requirements for paid political communications on the web, including e-mails, Twitter and Facebook. Read that report here.