Thursday, June 15, 2006

Thoughts on slate mailers:
I agree entirely with Larry. The slates that endorsed Olson did not do themselves proud. I was glad to see Allan Hoffenblum, an honorable slate publisher (and former client of mine) acknowledge that he erred in this case. But the fact that some slate publishers were negligent or worse is no more a reason for opposing or wanting to regulate slate mail than the failure of the LA Times and the rest of the press to cover the Janavs-Olson story is a reason to oppose or regulate the press.

With respect to the "double negative" that the Times story criticizes--"Not paid for or authorized by candidates and ballot measures not marked by an *"--Larry is correct that the story is quite misleading by not including the direct, affirmative statement that also appears in the disclaimer. Nevertheless, the double negative may well be confusing. But it does not a reflect a desire by slate publishers to obfuscate.

A California statute passed in 1987 requires a disclaimer on slate mail making three points: 1) that the publisher is X, not an official party organization; 2) that the candidates and propositions marked with an asterisk have paid for the costs of the mailing; and 3) that the candidates and propositions endorsed on the slate do not necessarily endorse each other. My slate clients and some other slates were including these disclaimers before the 1987 statute, which was borrowed the language that these slates were using.

Around the same time (I forget whether before or after the statute was passed), the Federal Election Commission brought proceedings against one of my clients. The client put an asterisk next to the candidates who paid for the mail and included the affirmative statement explaining what the asterisk meant. The FEC relied on a federal provision requiring mailers supporting federal candidates to disclose that the candidate had or had not paid for the mailing. The FEC maintained that the federal provision required more than a statement that candidates marked with an asterisk had paid. They believed it was also necessary to say expressly that those who were not marked had not paid.

I (and my client) thought that was preposterous. But the client did not think the issue was worth the effort or expense of litigating it. As a result, all California slates now include the double-negative statement. The fault, dear Brutus, is not in either the slates or in the California legislature, but in the FEC.
Daniel Lowenstein

Schuster, Bongiorni, Drake, ACLU v Heller, Can~on City, Manuel Talley v California,
Griset, McConnell note 88.

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