You won’t believe what this woman just did to challenge the state paid speech law!

Julie Lythcott-Haims, a Palo Alto council member and best-selling author, received a hopeful sign from California political observers June 15 when the Fair Political Practices Commission (FPPC) agreed to reconsider a rule banning elected officials to receive payments for book talks, workshops, and other types of paid speeches.

In a 4-0 vote, the four-member commission ordered FPPC staff to take another look at existing statutes and examine whether an exemption could be created to a 1990 law that bars elected officials from receiving fees. The law, which was enacted after California voters approved Proposition 112, was intended to target public corruption by removing a way for elected leaders to get paid by people who seek to influence them. But now she’s creating a financial barrier for Lythcott-Haims, which published three books before being elected to the board in 2022 and currently earns more than half of her income by speaking at author events.

Thursday’s hearing was requested by Lythcott-Haims after receiving a informal advice letter by FPPC staff in April who ordered her to limit the time she spends — and the income she receives from — speaking. The commission cited a law that prohibits “payment made in consideration of any speech given, article published, or attendance at any public or private conference, convention, meeting, social event, meal, or gathering.”

Yet the FPPC staff stopped short of outright banning her from making money by talking. Rather, the letter allowed her to continue to receive revenue from speeches as long as they represent less than 50% of her total business revenue. This was based on an exception the state grants to “bona fide” businesses that had been in existence for two years before the official was elected.

“Going forward, he will only be able to receive compensation for speeches and other public speeches as long as making speeches is not the predominant activity of his business,” said the April letter from FPPC General Counsel Dave Bainbridge and Assistant General Counsel Brian Lau.

Lau argued during Thursday’s hearing that the FPPC’s approach in Lythcott-Haims’ case was already lenient (as they could have banned her from receiving payments for speeches altogether) and that carving out exceptions for situations like hers would clash with state statutes.

“This approach enabled the officer to continue receiving payments for business-related activities, including published articles and participation in related events,” Lau said.

Lythcott-Haims’ attorney, Gary Winuk, disputed the conclusion of the April letter and said in his reply letter that his book and seminar talks are “based on the specialized experience he has developed over his extensive research and publication of three books” and which are “completely unrelated to his service on the Palo Alto city council and in no way trigger the potential harms against which the Honorarium ban seeks to protect.”

Winuk presented a similar case to the four-member commission on Thursday, with some success. While the commissioners acknowledged the broad applicability of the 1990 honorary law, Winuk pointed to cases in which the state has carved out exceptions, including one case in which an FPPC commissioner was paid to do a radio show and another case in which where an official who was a teacher was allowed to give a presentation on a book they had published.

Winuk suggested that the FPPC can address the Lythcott-Haims situation by revising its definition of “given speech” to exempt situations where authors make money on speeches that have nothing to do with their elected duties.

“I think in this narrow circumstance and based on our quite extraordinary facts, there is an exception that could be applied under the existing regulation under ‘speech given,'” Winuk told the committee.

A solidarity commission

Although Lau was reluctant to reconsider the previous personnel advice, which he felt was entirely appropriate, the four commissioners were much more receptive to Lythcott-Haims’ request. Since the subject of the hearing was an informal letter of advice, the committee did not have the procedural power to overturn its findings (such power is reserved for formal advice letters). All four commissioners agreed, however, that the law was not intended to regulate situations like the one facing them and that the FPPC should explore new exemptions for situations like Lythcott-Haims.

Chair Richard Miadich spoke for all his colleagues when he said the committee had a “high degree of sympathy” with Lythcott-Haims’ position. Commissioner E. Dotson Wilson, who worked on the legislation that implemented the 1990 law, said the honorary ban didn’t cover situations like this.

And Commissioner Abby Wood, a law professor, called the current situation “crappy” and noted that she is now writing a book and will want to give talks about books in the future.

“I don’t like it that way,” Wood said.

Miadich was open to this suggestion, but took it a step further and asked Lau to review all aspects of the statute to see if there are other “creative” approaches the FPPC can take to address the Lythcott-Haims situation while remaining faithful to the intention of the statute.

“We ask you to be as creative as possible to see if it is possible to come up with some amendments to this regulation that on the one hand would allow someone in the claimant’s position to continue receiving those payments, because we don’t feel they create the same kind of danger that the honorary ban is really intended to target without opening doors,” Miadich said.

Miadich agreed with FPPC staff that his interpretation was consistent with state law, which makes no exceptions for authors or others who rely on speeches as a significant source of income. She noted that when the 1990 proposal was considered, opponents raised the issue and argued that the fee ban would prevent them from earning a living. The proposal passed anyway.

But while he agreed with his personal interpretation of the bylaws, he suggested that the bylaws might need to be updated.

“In my opinion, what strikes me is that I think we have a statute that couldn’t be clearer that was intended to apply broadly to a lot of things because there was harm present at the time they were trying to deal with,” said Miadich, referring to contemporary efforts to curb corruption in public office.

“Since that time, I think there have been changes in the way people earn money. More and more people are doing things that could fall within the scope of that,” Miadich said.