California Continues to Push the Envelope on Violating Privacy and Free Speech Rights

March 20, 2024 | Alex Baiocco

On the heels of last week’s observance of Sunshine Week, lawmakers in California could use a reminder that violating residents’ privacy and First Amendment rights is not an exercise in government transparency.

California already has some of the most repressive, speech-stifling, and privacy-invasive laws in the nation regulating civic engagement and association. And, unfortunately, California lawmakers’ bad ideas, at least on First Amendment issues, tend to spread to other states.

While disclosure and reporting requirements for campaigns and political committees generally serve legitimate interests, some lawmakers won’t be satisfied until such laws are stretched to apply to any advocacy whatsoever on government action or policy issues. Proponents of these efforts often characterize invasions of citizen privacy as necessary to increase “transparency.”

Legislation carried over from the 2023 legislative session and currently active in the California Legislature, S.B. 724, was introduced by Senator Steve Glazer with the explicit goal of applying campaign finance disclosure and reporting requirements to speech that has nothing to do with candidates, campaigns, or elections. According to the author in an analysis for the Senate Elections and Constitutional Amendments Committee, the bill is necessary “to close a gap in California’s transparency and disclosure laws.” In addition to campaign speech, disclosure laws in California also regulate issue speech that mentions a candidate close to an election, commonly known as electioneering communications, as well as so-called “issue lobbying advertisements,” a term in California law that refers to public advocacy about legislation or administrative actions. In other words, any bill meant to close supposed gaps in California’s already expansive disclosure mandates will almost certainly stretch the law even further in an unconstitutional direction.

So, what’s the “gap” addressed by S.B. 724? Communications that don’t mention a candidate and/or aren’t disseminated close to an election won’t trigger campaign finance disclosure requirements under current law. Makes sense. But under S.B. 724, a communication that mentions an elected official, regardless of whether that official is currently a candidate running for re-election, and “educates the public about the previous votes cast by the elected state officer or about the source of campaign donations received by the elected state officer” would trigger disclosure requirements.

Under current law, donor disclosure is required for communications that are disseminated within 45 days of an election and mention candidates, including elected officials up for re-election. This requirement already applies to issue speech that is not electoral advocacy. S.B. 724 not only applies the disclosure requirements to speech that doesn’t even mention a candidate, it also expands the regulatory window to a nonsensical 150 days before an election – effectively covering the majority of the legislative session. Additionally, the spending threshold for triggering such regulation is cut in half.

Given the recent U.S. Supreme Court ruling in Americans for Prosperity Foundation (AFPF) v. Bonta striking down a sweeping California disclosure mandate, officials in the state should be especially sensitive to the First Amendment issues with this legislation. Indeed, an analysis by the Assembly Elections Committee noted that the introduced version of the bill “raises significant constitutional concerns and could be susceptible to a challenge on the grounds that it violates the guarantees of free speech and freedom of association under the United States (US) Constitution.” The analysis concluded, “Given the broad applicability of this bill, it remains uncertain whether a court would find a substantial relation between its disclosure requirements and a sufficiently important governmental interest” – the precise test the Supreme Court outlined in AFPF v. Bonta.

In an attempt to address the Committee’s concern that “this bill likely will require disclosure reports to be filed in connection with communications that do not seek to influence the legislative or electoral processes,” the author added the language specifying that a disclosure-triggering communication “educates the public about the previous votes cast by the elected state officer or about the source of campaign donations [the officer] received…” Efforts to increase government transparency should make it easier to educate the public about government action and hold those in power accountable. Senator Glazer’s bill, by imposing an invasive and complex regulatory regime upon those who dare to inform Californians about their elected officials, would have the opposite effect.

According to the findings included in the latest version of the bill, this amended language purportedly addresses any constitutional concerns because, “[w]hile the content of these types of advertisements may have an indirect connection to an election or particular legislative action, these advertisements nevertheless have the potential to impact the officeholder’s future election prospects and the outcome of issues on which they may be voting.”

Under this unhinged theory, disclosure requirements would be triggered by any public discussion of government action or issues that may be addressed by government action in the future.

Alarmingly, many of those leading the crusade against so-called “dark money” would have no qualms with such an outcome. Indeed, nonprofits that are legally barred from engaging in electoral advocacy are often on the receiving end of “dark money” attacks. As just one example, U.S. Senator Sheldon Whitehouse has characterized the AFPF v. Bonta decision as a “scheme” to “protect dark money for 501(c)(3)s” – nonprofit organizations that are prohibited from supporting or opposing candidates in any manner.

While S.B. 724 remains an active threat, no action has been taken since the Assembly Appropriations Committee postponed a hearing on the amended bill in September of last year. That said, the Senate passed the bill unanimously in May 2023, before the amendment ostensibly meant to address constitutional concerns was adopted.

Another bill aimed at expanding public disclosure requirements for groups engaged in issue advocacy did pass the Legislature last year. A.B. 421, which requires, among other things, that “Voter Information Guides” published by the state include a list of “top funders” supporting each statewide referendum, was signed into law by Governor Gavin Newsom in September.

In its original form, A.B. 421 would have required referendum petitions to list the effort’s top funders and require each signatory to acknowledge that they reviewed the top-funder list before signing a petition. In addition to the obvious privacy violations, this mandate would have been an administrative nightmare for organizers and petition circulators, as they would have been responsible for ensuring that the list was accurate as the top funders changed. While those onerous requirements were removed before passage, the idea is unlikely to go away and may return in future legislation.

As evidenced by the Assembly Elections Committee’s analysis of S.B. 724, it seems at least some in California are taking constitutional concerns seriously when considering disclosure requirements that burden First Amendment rights. At the same time, lawmakers have also indicated concern for the inherent risk to “privacy and safety” imposed by disclosure requirements – well, at least for themselves. In coordination with the Fair Political Practices Commission (FPPC), lawmakers are currently advancing legislation to redact their own home addresses from publicly available versions of required conflict of interest disclosures.

As FPPC Senior Legislative Counsel Lindsey Nakano told CalMatters, “We heard concern about people who might use the addresses found online on the Form 700s to harass the filer or those connected to them, including to potentially harass tenants of real property owned by the Form 700 filer,” adding that she’s “not aware of any specific incidences.” (Form 700 is a reference to the statement of economic interest forms filed by California elected officials and some public employees.)

Of course, several California laws, enforced by the FPPC, require private citizens to include their home addresses and employers in forms made public by the FPPC as a consequence of exercising basic First Amendment rights. Perhaps lawmakers will consider having the same concern for their constituents’ privacy when proposals to expand speech-triggered disclosure requirements inevitably arise in future legislation. Even better, lawmakers could consider proactively protecting Californians’ privacy, just as they seek to do for themselves.

For now, it seems efforts to change disclosure requirements in California will likely continue to move in one direction for lawmakers and the opposite direction for residents of The Golden State.