The Voters’ Right to Know Initiative is a Poison Pill for the Political Process

Charles H. Bell, Jr.
A leading California election lawyer and Senior Partner of Bell, McAndrews & Hiltachk, LLP, Sacramento

Last week, several well-known campaign reform activists, supported by funding from another Silicon Valley billionaire, filed a new campaign finance reform initiative they dubbed “The Voters’ Right to Know Act.” A closer look at the measure reveals that it contains a few standard political reform bromides and provisions recently considered by the Legislature, one of which went all the way to Governor Brown who vetoed it.  But, it does much more than that.  The proposed measure would amend the California Constitution’s “First Amendment,” as the Washington Post’s Matea Gold observed, to “enshrine in the State Constitution the right to campaign finance disclosure — making California the first state to put it on par with the rights to speech and privacy, among other fundamental guarantees.”

What is sure from this is that the “Voters’ Right to Know Act” is likely to lead to greater suppression of political speech and restrictions on the public’s right of initiative and to petition government – another part of the constitutional change not mentioned in Gold’s article. The real goal of the measure, as Gold’s article ascribes to former FPPC Chair Ann Ravel, is “to create a new legal framework to support a host of [new] campaign finance rules.” [Note: Ravel is neither an architect nor a supporter of the proposed initiative.]

The measure authorizes the Legislature to impose greater restrictions on the initiative process and petitioning state government, and also doubles or trebles fines for all violations of the Political Reform Act, imposing potentially stifling penalties on political speech activity and establishing stringent fundraising restrictions that specifically target and will cut off political parties’ ability to raise funds to support candidates in competitive races.

In California, whose voter-initiated Political Reform Act already is 130 pages long, with another 200 pages of interpretive administrative regulations and a state ethics agency devoted solely to policing state and local politics, many believe there are quite enough campaign finance rules already.  Yes, more lawyers, more rules, and even harder now for the average citizen to run for office (even local office) – just what we need! As now-deceased former FPPC Commissioner and constitutional lawyer Joe Remcho once observed, the campaign finance rules now are so complicated and byzantine that they constitute “traps for the wary”  and major impediments to political speech of everyone, not just wealthy individuals and Sacramento interest groups.

As if amending the Constitution to give regulators greater authority to regulate speech weren’t enough, the Voters’ Right to Know Act doubles potential maximum fines for all Political Reform Act violations, from $5,000 to $10,000 per violation, and subjects routine violations applicable to political advertiser notices on all types of campaign materials to fines up to three times the amount spent on the ads on which such notices appear. Such punitive maximum fines – which would be far and away the highest on political campaign and advertising activities in the Nation — pose a serious threat to all who might want to get involved as candidates, volunteer treasurers, and even professionals in campaign politics: putting not only their reputations but also their personal finances at great risk.

And don’t think the regulators never abuse their powers to investigate and punish political opponents nor legislators their power to write rules that do so.  Recent history is replete with alarming evidence of abusive governmental efforts to suppress political speech (e.g., the IRS’s 2011 campaign against conservative and Tea Party groups’ tax exemptions epitomized by the Lois Lerner scandal, and Wisconsin campaign regulators and criminal prosecutors’ 2011-2015 harassment of conservative groups in the Club for Growth “John Doe” scandal).  Such evidence cautions against giving bureaucratic regulators greater constitutional, quasi-criminal investigative and punishment authority in the political realm. As for legislatures abusing their powers in the First Amendment speech area, the 2002 Federal McCain-Feingold campaign finance law is a textbook case of incumbent members of Congress enacting campaign finance rules to suppress challenger candidates, and the political parties and other groups that support challengers, to protect themselves.

The “Voters’ Right to Know Act” proponents ironically are hiding the fact that some of the proposed reforms actually are current law.  They should know better.  Much of the justification offered by Ravel, a former FPPC Chair now at the Federal Election Commission, and Gary Winuk, one of the proponents of the measure and former Chief Prosecutor at the FPPC, is that current campaign disclosure rules don’t expose “dark money donors,” donors whose contributions to other groups that use some of those funds to spend on or donate to political campaigns.  Yet, just last year, the Legislature, with Ravel and Winuk playing important promotional roles from their FPPC positions, enacted SB 27 to accomplish such disclosure. SB 27 gave the FPPC regulatory authority to require independent expenditure and ballot measure committees that spend substantial amounts on such efforts to disclose their top 10 donors.  SB 27 also deemed large donors to these “multi-purpose organizations,” whether they contributed specifically for campaign purposes or not, as campaign contributors – imposing on them, and even donors to such groups, additional campaign reporting responsibilities.  SB 27 was, and is the most far-reaching campaign disclosure approach to such “dark money regulation” in the nation.  And SB 27’s scope is still expanding.   Just last week, the FPPC approved further regulations that would require additional multi-level campaign disclosure to implement SB 27.

Look for the proponents of this measure to tout it as the first step toward reversing the U.S. Supreme Court’s 2011 Citizens Uniteddecision that held that government can’t ban books under the guise of campaign finance regulation under the First Amendment.  That claim is flatly untrue.  Unfortunately, such false advertising is cynically designed to play on media and popular  “Citizens United derangement syndrome” – the unhinged fear that the 2011 Supreme Court decision was not just wrong, but undermined our system of democratic government.  Of course, the State’s “Voters Right to Know Act” doesn’t, and couldn’t, affect that U.S. Supreme Court decision.

The media fawn over get-tough campaign finance rules without considering that these rules also sweep up the little guys and volunteer-run committees, who might now face personally bankrupting government fines and penalties. This misguided measure is likely to drive such participants out of the political process, leaving only the big guys who have resources and advisers to cope with the new restrictions and even to pay punitive fines for even technical errors.

The voters have the right to know more about the “Voters’ Right to Know Act” before they sign the proponents’ initiative petitions.  The measure isn’t good medicine but a poison pill for the political process.

Charles H. Bell, Jr. is a leading California election lawyer and senior partner of Bell, McAndrews & Hiltachk, LLP, Sacramento.  The views in this article are his own and not necessarily those of his clients.

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