How much can I spend advertising against a ballot measure?

Answer

The answer to your question will depend on whether you would be considered a “committee” under applicable campaign finance laws, and therefore would be required to disclose expenditures over a certain amount that are in support or opposition of a ballot measure.

The Political Reform Act of 1974 requires that expenditures must be reported once specified monetary thresholds are reached. Governor Gray Davis Com. v. American Taxpayers Alliance, 102 Cal. App. 4th 449, 461 (2002).

Under Government Code § 82013, a “committee” is defined as “any person or combination of persons who directly or indirectly does any of the following:

(a) Receives contributions totaling one thousand dollars ($1,000) or more in a calendar year.
(b) Makes independent expenditures totaling one thousand dollars ($1,000) or more in a calendar year; or
(c) Makes contributions totaling ten thousand dollars ($10,000) or more in a calendar year to or at the behest of candidates or committees.” (emphasis added).

An “[i]independent expenditure means an expenditure made by any person, … in connection with a communication which expressly advocates the election or defeat of a clearly identified candidate or the qualification, passage or defeat of a clearly identified measure, or taken as a whole and in context, unambiguously urges a particular result in an election but which is not made to or at the behest of the affected candidate or committee.” Gov’t Code § 82031.

The Government Code further defines “expenditure” to mean “a payment, a forgiveness of a loan, a payment of a loan by a third party, or an enforceable promise to make a payment, unless it is clear from the surrounding circumstances that it is not made for political purposes.” Gov’t Code § 82025.

“A payment is made for ‘political purposes’ IF IT IS: ‘For the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate or candidates, or the qualification or passage of any measure . . . .'” Governor Gray Davis Com., 102 Cal. App. 4th at 462, quoting Cal. Code Regs., tit. 2, § 18225, subd. (a)(1).

Therefore, by strict construction of the Political Reform Act, if you intend to spend $1,000 or more on newspaper advertisements opposing the local measure, then you are required, by law, to report this expenditure.

The next question, then, is whether your First Amendment right of free speech is in any way implicated by this restriction. Using a strict standard of scrutiny, the Supreme Court upheld a provision of the Federal Election Campaign Act of 1971 that limited political contributions by individuals to $1,000 for any candidate and $25,000 total, and also required that every person who makes contributions aggregating more than $100 in a calendar year to file a statement with the commission. Buckley v. Valeo, 424 U.S. 1, 58-59 (1976).

The Court acknowledged that while “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment” by deterring political expenditures and discourse, the government has a substantial interest in providing the electorate with information to assist in the evaluation of candidates for public office and preventing corruption of the electoral process. Id. at 66-68.

“[D]disclosure requirements — certainly in most applications — appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.” Id. at 68.

I did not find any case where the court explicitly considered the constitutional validity of the particular provisions of the California act that would apply to you, but under the Supreme Court’s analysis, it is possible that the provisions would be upheld. Of course, there could be facts that might make your situation distinguishable from the facts of Buckley. As you can see, any analysis would be necessarily case specific.

To the extent that you are urging voters to vote against the local measure, then it is likely that your communications will come within the reach of the Political Reform Act (assuming you spend more than $1,000 on newspaper advertisements).

The California Court of Appeal held that “expenditure” provisions of the Political Reform Act apply to communications containing “express language of advocacy with an exhortation to elect or defeat a candidate.” Governor Gray Davis Com., 102 Cal. App. 4th at 471 (appellant’s television spot was not subject to regulation because, while critical of the governor, failed to associate its condemnation with any express endorsement or defeat of his candidacy for governor, especially given that no election was imminent when the advertisement was aired).