FPPC OPENS DOOR TO TAXPAYER-FUNDED ELECTIONS
A common complaint among the taxpaying public is that the government spends taxpayer dollars for political ads. In theory, this is supposed to be illegal, but it still happens all too frequently.
Up until now, the Fair Political Practices Commission has been an aggressive enforcer against these expenditures.
For example, the FPPC imposed a $1.3 million fine against Los Angeles County for using taxpayer funds for political ads touting Measure H, a sales tax increase on the ballot in 2017. The FPPC also created an “ad watch” program by which citizens can report government-financed communications that they suspect cross the line into political advocacy.
The big fine against L.A. County was precipitated by a complaint filed by the Howard Jarvis Taxpayers Association. It was hoped that the fine levied by FPPC would serve as a warning to government entities in California that they must obey all state laws and regulations relating to both reporting campaign expenditures as well as providing disclosures on campaign advertising.
But it now appears that the FPPC has backtracked.
No doubt frightened by the big fine against L.A. County, the California State Association of Counties and the California School Boards Association sent a letter to the FPPC asking for clarification, or perhaps for a loophole.
The organizations asked if the Political Reform Act and FPPC’s own regulations actually created “a per se reportable campaign expenditure whenever public agencies engage in communications regarding ballot measures through the means of television, radio, and electronic media (including social media), regardless of the content of the communications.”
HJTA, given its interest in this issue, filed formal comments arguing that the FPPC’s own regulations as well as case law and statutory law were unambiguous: Election season communications regarding ballot measures via paid television, radio and electronic media ads constitute campaign expenditures subject to reporting and disclosure requirements.
Our reasoning is that counties and school boards do not use television or radio ads or paid social media ads as a routine method of communicating with citizens or parents but rather have relied on low-cost traditional governmental means of communication, such as e-mail, cell phone texts, banners on county websites, on-hold recordings on county phones, posts on county social media accounts and printed inserts in billing envelopes.
The only time government entities spend money on radio, television or paid social media advertising is when they are trying to influence the outcome of an election.
Unfortunately, the FPPC commissioners decided that whether TV, radio and electronic media advertising is reportable to the public will depend on the content of the communication. To be reportable, it must “unambiguously urge a particular election result.”
Irrespective of how rigorously the FPPC applies this standard, the commission’s opinion will no doubt tempt government entities to push the envelope in the use of taxpayer dollars to influence election outcomes. We are certain to see big dollars spent — of your money — to influence voters to raise taxes even higher.
But taxpayers are not without alternative remedies. While the FPPC’s jurisdiction is limited to enforcing the disclosure of campaign spending and the timely reporting of those expenditures, the courts — both federal and state — are not so limited.
Taxpayers have the right to bypass the FPPC when it fails to act and proceed directly to the superior court for claims asserted under the First Amendment of both the U.S. and California Constitutions. The free speech clauses of the federal and state constitutions prohibit the use of governmentally compelled monetary contributions (including taxes) to support or oppose political campaigns because, as noted by the California Supreme Court, “Such contributions are a form of speech, and compelled speech offends the First Amendment.”
Moreover, “use of the public treasury to mount an election campaign which attempts to influence the resolution of issues which our Constitution leaves to the ‘free election’ of the people (see Const., art. II, § 2)…presents a serious threat to the integrity of the electoral process.”
We have little doubt that, as we enter the 2022 election cycle, cities, counties and special districts will use public funds for political advocacy.
Fortunately, prosecuting such violations of law was the very reason the Howard Jarvis Taxpayers Association created the new Public Integrity Project, which will be run by HJTA’s affiliated 501(c)(3) organization, the Howard Jarvis Taxpayers Foundation.
HJTF’s Public Integrity Project has already proven to be an additional enforcement tool against illegal expenditures of public funds and other violations of law that hurt taxpayers and voters.