another victory for the Elites' Court; another defeat for democracy

[David Farber <dave () farber net>]

Begin forwarded message:

From: Jim Warren <jwarren () well com>
Date: October 31, 2004 12:25:32 PM EST
To: State and Local Freedom of Information Issues 
<FOI-L () LISTSERV SYR EDU>, calfoi-list () lists berkeley edu
Cc: "Dave Farber: ;Declan McCullagh" <declan () well com>
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 () sacbee com.

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