Transparency Standard – California

California only requires disclosure of paid communications that contain “express advocacy” for the election or defeat of a clearly identified candidate or ballot measure (i.e., use the “magic words”) OR are made in the 60 days preceding an election and, on the whole, unambiguously urge a particular election result. These definitions of which communications require disclosure are even narrower than those that exist for federal elections, and leave a tremendous amount of leeway for independent expenditure groups who want to run ads intended to influence voter opinion while keeping the sources of their money hidden from public view.

Proposal: Expand definitions of what requires disclosure to include any paid communication that refers to a clearly identified candidate or ballot measure during the period of time beginning 60 days before a primary election and running uninterruptedly through the general election, regardless of whether the content of the message might be interpreted as having a purpose besides urging a particular electoral outcome.

California’s current requirements surrounding the information that must be reported about contributions and expenditures are generally effective. For contributions, the fact that there is reporting required by both recipient committees as well as the persons making contributions above a certain threshold helps to ensure a comprehensive set of information about major contributions being made in a given election cycle. The synchronization of these two “versions” of the information being reported would be greatly enhanced if recipient committees were required to report, along with the name, employer, and occupation of all contributors, the committee ID of any major donors from whom contributions have been received.

Robust reporting of information about expenditures is currently required of expenditure-­making entities, but not of payees. Proposed legislation (AB 2188) would require certain payees—specifically, digital advertising platforms—to retain and make publicly available information about the advertising payments that they receive from committees, including the dates and dollar amounts of ads being run, a copy of the advertisement being paid for, and the ID of any committee spending above a certain threshold on advertisements.

Proposal: In addition to the requirements proposed by AB 2188, require all payees receiving a certain threshold of money from political committees to file reports about the expenditures that they have received, including dates and amounts of payments received, the committee IDs of entities from whom a certain threshold of payment has been received, and a copy of any advertisements that payments are used to purchase or run. Similarly, require recipient committees to report the committee ID of major donors from whom they receive contributions.

Currently, when the money behind an expenditure has been passed through one or more intermediaries, it is only required that it be traced back to its original source if that source contributed the money for the express purpose of supporting or opposing the specific entity targeted by the expenditure in question. This is an enormous loophole that allows the original sources of money to evade disclosure requirements by passing money through intermediaries and engaging in wink-­and-­nod communications surrounding the purpose of their contributions.

Proposal: All expenditures above a certain threshold should be traced back to their original, true sources of funding.

Cal­-Access upgrade and re-­engineering is mandated by SB 1349. When complete, the project will eliminate frequent outages via infrastructure modernization, provide easy­-to-­use filing and search, and enable citizens to track campaign and lobbying spenders holistically via unique IDs. SB 1349 authorized and funded Secretary of State to design and issue the RFP for budgeting, likely in the 2019 state budgeting cycle.

Proposal: Budgeting of system development—and prioritized implementation by SoS—is vital to ensure that Californians have a window into the spending that drives decisions in their democracy.

The recently enacted California DISCLOSE Act created new requirements that committees must place easily comprehensible disclaimers listing their top contributors directly on the advertisements that they run. This is as good a standard of linking ads to funders as any of which we are aware—with the caveat that in order for the top contributors listed to be consistently accurate, the rules surrounding the tracing of expenditures back to their true, original source must be improved.

Proposal: See above re tracing.

California’s Fair Political Practices Commission is a national model of effective enforcement of transparency law.

Proposal: As new transparency laws are passed, ensure that the FPPC is provided with adequate staff and resources to maintain its standard of enforcement. To help cover enforcement costs, consider increasing the maximum penalties that can be imposed for violations.