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Recent Chamber Ad Raises Questions Over Election Laws

SACRAMENTO, CA — Political hit
jobs on TV are like pornography: you know it when you see it.

Right?

A
short-lived state Chamber of Commerce television advertisement that
attacked Democratic gubernatorial candidate Jerry Brown had all the
earmarks of an outright slam. It had images of Brown's face — in fact, a
"before" picture, of his younger days as governor, and an "after"
picture of the smoother-domed attorney general — and a bunch of nasty
lines about his alleged tax-and-spend proclivities, even for the years
he wasn't in office.

"In the world of common sense, this was
electioneering aimed at influencing how voters choose the next
governor," said Derek Cressman, western regional director for Common
Cause, a private nonprofit political watchdog group.

Still, the chamber insisted it wasn't a campaign advertisement, which would have required that donors to the effort be revealed with the Secretary of
State — something that many donors prefer to avoid.¿

Disclosure
is key, observers say, because it gives information on who is behind
political ads, an important consideration in deciding what or who to
support.

Because it hadn't expressly told voters to defeat Brown —
called the "magic words" in election law parlance — the chamber's ad
could be called an issue advocacy spot, a gentle nudge to voters to be
aware of the significant issue of the day.

Still, the ad was pulled off the air late Thursday after some members of the
chamber's board of directors complained of its overly partisan hue after
having been assured that it was a nonpartisan issue ad.

The
ad, which ran for two days in all parts of the state but the Bay Area,
suggested that Brown was at fault for what it says is the state's $200
billion debt and job losses, saying Brown had a 35-year record of taxing
and spending.

But the withdrawal of the ad leaves unsettled a
long-standing dispute over when a political ad is considered
electioneering in a campaign and when it's merely an ad to further the
knowledge of voters on a particular issue.

It's an area that has
been left vague by court decisions and legislative reform, providing
enough wiggle room for what some call abusive tactics.

"There are
two kinds of issue ads," said Floyd Feeney, a UC Davis election law
expert. "One is when you're talking purely about actual issues, and the
other is when you're really talking about a candidate but are dressing
it up as an issue."

"The magic word standard is terrible," said
Bob Stern, president of the Center for Government Studies. "It allows
people to get around the law too easily."

Critics said that the
chamber was able to conceal who provided the funding for the ad by using
funds from its general treasury rather than its more tightly regulated
political action committee — a move they were only able to pull off by
convincing board members the ad was going to be an issues advocacy
effort.

If it was sold as a strictly political ad, the board would
have likely recommended that the chamber use its political action
committee funds, which is required to disclose its donors, said a board
member, who asked not to be identified. As a nonprofit organization, the
chamber does not have to reveal its donors with uses of its general
treasury funds.

The implications are all the more important given
Democrats' accusations that the chamber put the ad out in concert with
Republican gubernatorial candidate Meg Whitman's campaign. In a
complaint filed with the Fair Political Practices Commission, the
Democratic Party said that ex-Gov. Pete Wilson's position on the
chamber's board of directors and as co-chairman of Whitman's campaign
provided ample evidence to compel the FPPC to conduct an investigation
into illegal coordination between Whitman's campaign and the chamber.

Allen
Zaremberg, the chamber's president and CEO, called that charge "crazy,"
saying, "I never talked to Pete Wilson about what we were doing. He was
supportive of the issues advocacy effort and that was it. There's no
merit to the complaint."

Democratic Party Chairman John Burton
said he hasn't decided whether to continue pursuing the charge now that
the ad is off the air, but remains convinced it was a partisan ad that
emanated from coordinated action between the chamber and Whitman's
campaign.

"You got Pete Wilson who's a key (Whitman adviser) and a
key guy on the chamber's board," Burton said. "He has probably as much
political weight as anybody. That was a clear violation."

Consumer
Watchdog, a government watchdog group, will pursue its own complaint
with the FPPC, calling the ad a "dangerous precedent."

"If the
FPPC doesn't crack down on this, corporations will continue playing
semantics to avoid disclosure demanded of the system," said Doug Heller
of Consumer Watchdog. "For so many people, the messenger is the message.
People reasonably turn to messengers they trust, but if we can't
authenticate the messengers, it becomes really unfair."

Nationally,
the U.S. Chamber of Commerce, the largest business lobbying group in
the country, spent $47 million on issues advertising last year — mostly
on health care policy — according to Kandar Media's Campaign Media
Analysis Group in Arlington, Va. And it has plans to spend another $50
million on candidate ads this year.

The recent U.S. Supreme Court
decision to allow unlimited spending for corporations has some in
Congress fearful that large corporations will begin to funnel political
money through the Chamber of Commerce to make an impact on upcoming
elections but avoid disclosure. That has spurred congressional
legislation to require nonprofit groups, unions and trade associations,
such as the chamber, to identify who pays for ads on candidates for
federal office.

No state legislation is being contemplated to
address the issue in California.

"We have to go to either stricter
disclosure or a broader definition of what a campaign ad is," said
Bruce Cain, director of the University of California Washington Center
in Washington, D.C. "There's no excuse for not having complete
disclosure for any advertisement in a cycle where there's a declared
candidate."

Contact Steven Harmon at 916-441-2101.