FROM: Kim Alexander
DATE: May 13, 1999
RE: The Griset case: disclosure vs. anonymous speech
Some of you may already be aware of an important pending legal issue here in California, addressing the conflict between public disclosure and anonymous political speech. It's called the Griset case, and it's a long, complicated and extremely important legal issue that I will try my best to summarize for you, since the outcome will have widespread consequences for political disclosure and "digital sunlight".
Eleven years ago, the California Fair Political Practices Commission fined a Santa Ana city councilman named Daniel Griset, for violating our state's mass mailing disclosure law, which requires identification of political committees on mass mailings of 200 pieces or more. Specifically, Griset sent out five mailings to voters in his district attacking his political opponent. Rather than disclosing his committee name and ID number on the mailings, Griset instead made up two fictitious committees and sent the mailings under their names.
Over the past decade, Mr. Griset has been fighting for his right to this kind of campaign practice, claiming that he has the right to anonymous political speech. The California Supreme Court disagreed, and ruled in favor of the FPPC. Then, in 1995, the U.S. Supreme Court took up another anonymous political speech case, involving an Ohio woman named Margaret McIntyre. Ms. McIntyre objected to an Ohio law that prohibited her from distributing any campaign literature without identifying herself on it. In 1995, The U.S. Supreme Court ruled in favor of Ms. McIntyre, stating that the people have the right to anonymous political speech.
Before I continue with this saga, I'd like to make one thing very clear:
The Ohio law, which the U.S. Supreme Court ruled unconstitutional, prohibited anonymous political speech of any kind. California's laws, however, protect anonymous speech to a point: anyone can spend less than $1,000 without having to form a political committee; anyone can distribute literature in person without having to disclose the responsible committee; and anyone can send up to 199 pieces of literature through the U.S. mail without disclosing the responsible committee.
Due to a technicality in the legal proceedings of the Griset case, Mr. Griset and legal team (which included, until recently, Daryl Wold, who is now a member of the Federal Elections Commission!) were able to use the U.S. Supreme Court's McIntyre decision to re-open his case before California's 4th District Court of Appeal in Santa Ana. On January 29, 1999, that court ruled that the McIntyre decision affirmed Mr. Griset's right to anonymous political speech, and in so doing, threw out California's mass mailing disclosure law.
In response, the FPPC asked the California Supreme Court to once again review the Griset case, and the California Voter Foundation sent a letter to the court urging them to take the case. Letters were also sent by the City of Los Angeles and a group of law school professors.
Yesterday, the California Supreme Court announced that it will take the Griset case and review the lower court's decision, which was a huge relief for all parties petitioning for review, since the court takes very few cases each year.
When I first learned about this case, it stumped me for a while and I really had to think it through. I've since concluded that while people have the right to anonymous political speech, that right needs to be balanced against the public's right to know. And I think California's mass mailing disclosure law struck a fine balance between these two important rights, unlike the Ohio law, which did not protect anonymous political speech of any kind.
Below is a copy of the California Voter Foundation's letter to the California Supreme Court outlining our concerns. For further information, take a look at the February 23, 1999 story by Dorothy Korber, published in the Los Angeles Daily News:
March 30, 1999
Honorable Ronald M. George, Chief Justice
Honorable Marvin Baxter, Associate Justice
Honorable Janice R. Brown, Associate Justice
Honorable Ming W. Chin, Associate Justice
Honorable Joyce L. Kennard, Associate Justice
Honorable Stanley Mosk, Associate Justice
Honorable Kathryn M. Werdegar, Associate Justice
California Supreme Court
350 McAlister Street
San Francisco, CA 94102-3600
RE: Griset v. Fair Political Practices Com. (1999) 69
No. G018853, Orange County Superior Ct. No. 638654
Amicus Curiae Letter in Support of Petition for Review
Dear Chief Justice George and Associate Justices:
I'm writing on behalf of the California Voter Foundation to request, pursuant to Rule of Court 14(b), that the Supreme Court grant the Fair Political Practices Commission's Petition for Review of the above-referenced case.
The California Voter Foundation (CVF) is a nonprofit, nonpartisan organization dedicated to using new technologies to provide the public with access to the information needed to participate in politics in a meaningful way. Our main focus is providing voter information on the Internet, such as campaign finance data that helps voters "follow the money" and find out who's funding political advertisements. Our web site is used by thousands of people, and is available on the Internet at http://www.calvoter.org. I've attached a few typical comments from visitors to our web site (Exhibit A).
We are deeply concerned about the 4th Appellate Court's ruling in the Griset case which has repealed California's mass mailing disclosure law (Government Code Section 83405) for the following reasons:
1) This decision compromises voters' ability to make informed choices;
2) This decision greatly reduces a candidate's ability to hold accountable those parties responsible for significant and malicious campaign attacks;
3) In the long run, this decision may reduce the number of people willing to run for public office; and
4) This decision may lead to the erosion of other disclosure laws that help the public make informed choices.
We hope you will accept the FPPC's petition as soon as possible, as the 4th Appellate Court's decision, which took effect March 1, may have a dire impact on local elections being held this April in the cities of Arcadia, Burbank, Compton, Glendale, Inglewood, Los Angeles, Pasadena, Pomona, and Santa Monica, potentially compromising millions of California voters' abilities to make informed choices.
California's mass mailing law requires anyone who sends out more than 200 pieces of campaign literature through the U.S. mail to disclose the name of the political committee responsible for that literature. This disclosure law makes it possible for a citizen to access the responsible political committee disclosure reports and find out who funded the mailing. Without this disclosure law, it will be impossible for a voter to determine the responsible party.
This unfortunate ruling comes at a time when other new and important disclosure reforms are taking effect. In 1997, California's Legislature enacted the Online Disclosure Act, which requires the Secretary of State to publish California campaign contributions on the Internet. This new law makes it possible for voters to "follow the money" like they never could before. Instead of pouring over stacks of paper files, California voters will be able to look up campaign contributions on the Internet. California's Online Disclosure Act will be fully implemented with the 2000 election cycle.
Yet this significant advancement in voter education will be set back should the repeal of California's mass mailing disclosure law be allowed to stand. Political campaigns can (and, given past practices, likely will) make up names of fictitious committees in order to anonymously attack their opponents. If voters don't know the name of the committee responsible for the literature that arrives in their mailboxes during an election, they will have no way to track down the funders of a mailing and determine who's responsible for an attack.
A recent case in a Carson City Council race highlights the problem. A man named Jim Dear was a candidate for the Carson City Council in an election held on March 2, 1999. Four days before the election, voters in his district received a postcard supposedly from the "Gay Mens Chorus of LA" declaring that Mr. Dear was "the choice of the Gay & Lesbian community!" and stating that he has "stood up and fought for our cause". The postcard featured a photo of Mr. Dear with schoolchildren, and was printed in bright pink ink. It turns out that the Gay Mens Chorus of LA was not responsible for the mailing, and Mr. Dear, who lost the election, is still trying to determine who was responsible for it. Without California's mass mailing disclosure law, it will be difficult for Mr. Dear or any other political candidate to hold accountable groups that send out fraudulent or misleading attacks such as the one to which Mr. Dear was subjected. (A copy of the postcard is attached as Exhibit B.)
The 4th Appellate Court's decision is a result of the U.S. Supreme Court's ruling in the McIntyre case, which overturned an Ohio law that banned any form of anonymous political speech. The 4th Appellate Court overturned your earlier decision on the Griset case on the grounds that California's mass mailing disclosure law is also a violation of anonymous political speech, which the U.S. court was clearly trying to protect in the McIntyre case.
However, California's mass mailing disclosure law does not prohibit anonymous political speech. Any individual can spend up to $1,000 and can distribute an unlimited number of pieces of literature, or mail up to 199 pieces of literature through the U.S. mail with complete anonymity. The mass mailing disclosure law only takes effect after $1,000 has been spent or more than 200 pieces of mail are sent through the U.S. Mail. The California Voter Foundation believes that California's mass mailing disclosure law fairly balances the right to anonymous political speech with the equally important voters' rights to make informed choices.
We are also deeply concerned about the impact this decision may have on potential political candidates. With no means of accountability for deceptive mailers, many would-be candidates may opt not to run for public office out of fear of having their businesses or reputations ruined by anonymous political mailers. The rights of voters to make informed choices, as well as the rights of political candidates to stand for office without fear of being subjected to a significant, anonymous political attack must be considered and balanced against the right to anonymous political speech.
The 4th Appellate Court's decision may also lead to an erosion of other disclosure laws that are fundamental to voters' ability to make informed choices. Hundreds of millions of dollars are spent every election season in California in an attempt to persuade voters. Much of the political communication that voters receive, whether it's in their mailboxes or over the airwaves, is misleading, manipulative, and designed to confuse or instill fear into voters. Being able to "follow the money" and find out which groups or individuals are responsible for a political message is the best way voters have to evaluate the nature of a political message.
Kim Alexander, President
California Voter Foundation
Exhibit A: Comments from visitors to the www.calvoter.org web site
Exhibit B: Copy of Jim Dear postcard from the "Gay Men's Chorus of LA"