Local governments are fighting to spend public funds on campaigns

“Your tax dollars at work.” Those words are usually reserved for the sign posted by a new public works project.

Last month, however, Los Angeles County officials were caught making a more creative, and surreptitious, use of tax dollars far afield from fixing potholes: They were buying political campaign commercials.

The state Fair Political Practices Commission fined the county $1.35 million for secretly using almost $1 million in taxpayer money during the 2018 election for television and radio ads supporting a tax for homeless services.

While Los Angeles was the local government that got caught, such use of tax dollars is ubiquitous across the state. In other elections, for example, I’ve seen government-paid campaign advertising from the Bay Area Rapid Transit District, East Bay Regional Park District, Alameda Unified School District and Castro Valley Unified School District. If counties and school boards have their way in a separate ongoing lawsuit, the practice will become unstoppable.

Some background: When it comes to the government using taxpayer money for electioneering, California liberals and conservatives can probably agree on two basic principles. First, don’t do it. Second, if government violates the first principle, it should play by the same campaign transparency rules as any other political action committee. The FPPC nailed L.A. County for violation of the latter principle. The county failed to file the usual campaign finance disclosures.

These shenanigans often occur in local elections whenever there is a tax proposal on the ballot. Under California’s postProposition 13 tax laws, a tax can only be imposed if a majority, or often a two-thirds supermajority, of those voting approve the tax.

Politicians and government officials want the ballot measure to win so that they can fund some public service, expenditure or construction. But with the two-thirds requirement, a minority of voters can stop a tax, no matter how deserving or vital the purpose. With such a tall mountain to climb, politicians and government officials often try to do everything they can to advertise the benefit of the new tax to the voters before the election.

While the FPPC fine might seem hefty, it’s unlikely to deter cities and counties from continuing to use taxpayer funds for these types of political campaigns. The temptation is too great. Local government officials and employees have much to gain by helping these tax measures pass and not so much to lose. For example, in the Los Angeles case, the political campaign and resulting fine together cost $2.35 million. But the measure passed, allowing the county to collect $3.55 billion in taxes over 10 years. An astute government official in another city confided to me that any fine, if the FPPC chooses even to open a case, is an acceptable cost of doing business.

Nothing in the FPPC’s law requires that the individuals who came up with the scheme pay any penalty out of their own pockets. Indeed, Los Angeles’ settlement agreement expressly releases the county’s Board of Supervisors and employees from any liability. So the county will be paying the fine with, you guessed it, taxpayers’ money. (There are criminal laws against use of public funds for campaigns, but those prosecutions on ballot measure campaigns are so rare as to be unheard of.)

Now county and school board officials have launched a legal counterattack on the FPPC to stop enforcement efforts. The California State Association of Counties and the California School Board Association are suing the FPPC in state Superior Court.

Having the county and school boards associations as plaintiffs, rather than a specific county, school board or official, is a clever tactic. The associations are not subject to the Public Records Act or similar transparency laws, so the individual officials who authorized the lawsuit are insulated from their constituents’ criticism.

In lawyer-speak, the two associations argue that the FPPC is acting beyond its jurisdictional powers by utilizing regulations that target advertising by local governments. But I think the real motivation is revealed in the associations’ own legal briefs: “For nearly ten years, the FPPC never attempted to enforce the Regulations (requiring governments to disclose their campaign spending).” “Recently, however, the FPPC has begun to aggressively enforce the Regulations against local governments and agencies.” “Other actions to enforce the Regulations have followed, and the FPPC is expected to continue its aggressive push to enforce the Regulations.” In other words, the associations are running to the courthouse because the FPPC started doing its job again.

A judge will hear the case on Nov. 6, just three days after the presidential election. If the associations’ lawsuit is successful, the words “Your taxpayer dollars at work” may be more appropriate, not for the new public works project but for the slick political commercials in your city’s next election.

Mark T. Morodomi was formerly acting chief of enforcement for the California Fair Political Practices Commission and then served 12 years as supervising deputy city attorney in Oakland.