As the November election gets closer, be on guard for local governments openly supporting tax hikes – and spending taxpayer dollars doing so. While local officials are free to support or oppose ballot measures, they may not spend public funds on any election contest – either for or against a candidate or initiative.
Despite this clear prohibition, this is a growing problem, and it gets worse every election cycle as local governments – egged on by high priced consultants – push the envelope from merely informational activity into clear advocacy.
The Howard Jarvis Taxpayers Association has a special interest in challenging these violations because they are an affront to both statutory and constitutional law. The same First Amendment rights that allow individuals to speak on ballot issues also prohibit the use of taxpayer funds for political advocacy. In 1976, the California Supreme Court ruled, “The 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.” Stanson v. Mott (1976) 17 Cal.3d 206, 218.
A major development in this controversy occurred in 2017 when the County of Los Angeles spent almost $1 million in public funds on a multimedia campaign urging voters to support Measure H, a one-quarter percent sales tax increase to pay for homelessness services. The Howard Jarvis Taxpayers Association filed a complaint with the Fair Political Practices Commission (FPPC) as well as a lawsuit seeking to enforce the law that bars the use of public funds for political advocacy. Because the county failed in both its reporting and disclosure requirements, the FPPC imposed a record $1.3 million fine.
Taxpayers should be grateful that the FPPC has made addressing this abuse a priority. But there is only so much it can do. Current law does not permit the Commission’s Enforcement Division to investigate and bring legal action against public agencies and officials for spending taxpayer funds on campaigns. Its authority is limited to requiring disclosure of campaign spending and the timely reporting of those expenditures.
Past fines imposed by the FPPC under its limited authority include penalties imposed on the city of Garden Grove ($18,000 for distribution of a campaign related mass mailing at public expense), Fresno County Transportation Commission ($27,000 for failure to include a proper advertising disclosure on the “Video Ad”), and, just recently, Nevada County ($34,614 distribution of two mailers urging affirmative vote on a sales tax increase).
While these fines might generate bad p.r. for a local government, for taxpayers, they are inadequate relative to the severity of the misuse. That even applies to the $1,000,000 fine against Los Angeles County, for which one million dollars is budget dust.
In other words, despite the illegality of taxpayer funded advocacy, local officials have an incentive to violate the law because the potential ROI (the return on investment) of millions – if not billions – in new tax revenue would dwarf any fine or other punishment they might face. What is needed are real consequences imposed on bad actors including large fines, personal liability on the part of those authorizing those expenditures and, yes, even jail time.
So, what can voters do if they see a taxpayer-funded political ad that crosses the line from “informational” material to outright “advocacy?”
At a minimum, voters may forward a copy or screen shot of the questionable ad and send it directly to the FPPC’s “ad-watch” program, where citizens can report government-financed communications that they suspect cross the line into political advocacy. 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 proceed directly to Superior Court for claims asserted under the First Amendment of both the U.S. and California Constitutions.
Finally, voters can always contact the Howard Jarvis Taxpayers Association which has created a Public Integrity Project under the auspices of HJTA’s affiliated 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.
Jon Coupal is president of the Howard Jarvis Taxpayers Association