PRESS RELEASE
Thursday, December 12, 2002 
Contact: James Bopp, Jr., General Counsel
Phone 812/232-2434; Fax 812/235-3685
madisoncenter@aol.com

California Supreme Court Rejects Appeal of Gov. Gray Davis Comm. v. ATA

On December 11, the California Supreme Court denied a request to review the September 25 decision of the California Court of Appeal (First Division), which joined numerous state and federal courts in recognizing that the U.S. Supreme Court, in Buckley v. Valeo (1976) and FEC v. Massachusetts Citizens for Life (1986), declared that the First Amendment to the federal Constitution mandates a bright-line express advocacy test to protect issue advocacy from government regulation. James Bopp, Jr., of the law firm of Bopp, Coleson & Bostrom, represented the winning party, the American Taxpayers Alliance ("ATA"). The California Supreme Court's rejection of the appeal leaves intact the decision of the California appellate court, which had also questioned the viability of the 9th Circuit's less distinct express advocacy test in FEC v. Furgatch (1987).

The case, Gov. Gray Davis Comm. v. ATA (A096685), involved a television advertisement run by ATA that criticized Gov. Davis for his handling of the California energy crisis and ended with the phrase "Gray outs from Gray Davis" as a lightbulb goes dark.. The Gray Davis Committee filed suit to compel ATA to register and report its donors under California's Political Reform Act, which requires the reporting of "express advocacy."

ATA attorneys moved to dismiss the complaint because it was brought to suppress free expression and "Gray outs from Gray Davis" was not reportable "express advocacy." ATA relied on the U.S. Supreme Court's express advocacy test, which requires that the communication in explicit words expressly advocate the election or defeat of clearly identified candidate. ATA noted that "Gray outs from Gray Davis" did not advocate the defeat of Gov. Davis. The Governor's Committee insisted that the phrase was thinly-veiled, subliminal advocacy to get "Gray out[]," relying on the 9th Circuit's broader express advocacy test.

The trial court entered an injunction requiring ATA to register with California's Fair Political Practices Committee and report ATA's donors. The appellate court reversed, holding that the ad contained no express advocacy and that California could not regulate issue advocacy. James Bopp, Jr., lead counsel for ATA and Madison Center General Counsel, declared that the State Supreme Court's decision "preserves an important victory." He added that "this victory was not unexpected because the appeals court decision was in line with the great weight of authority."

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