Express advocacy, California style

By phone I listened with interest to the California Fair Political Practices Commission’s interested persons discussion about express advocacy.  (I noted the event here.)  As the FPPC explained in a press release, the topic was express advocacy “in the wake of Citizens United.”  In The Governor Gray Davis Committee v. American Taxpayer Alliance a state court held that Section 82031 and Regulation 18225(b)(2) were constitutional only if they were narrowly construed to define “independent expenditure” as including “express advocacy,” a term the court equated with the presence of “magic words” such as “vote for,” “support,” or “vote against.”  A number of eloquent speakers addressed the issues.  Some raised serious questions about the authority of the FPPC to issue an interpretive statement, asserting that legislative action or a rulemaking might be required.  Staff for the FPPC defended the idea that the time was ripe for an interpretive statement along the lines outlined in the notice.  A member of the FPPC (it was a little difficult to follow who was speaking) seemed to indicate that action could come as soon as August 12, 2010, or later.  The agenda for the 12th doesn’t seem to be available yet.

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