This commentary appeared first in the Orange County Register.
Californians going to the polls on Nov. 8 will find more than 300 measures to raise taxes. And despite multiple legal decisions limiting the practice, municipal officials in California may be paying outside consultants to run the campaign to sell you on your local tax measure.
In short, government officials use the public’s money to persuade the public to give government officials more money.
If you think that’s strange, you have good company. In the 1976 case Stanson v. Mott, the California Supreme Court established the principle that would seem to govern the space where government reaches out like the muscular and fully clothed God in Michelangelo’s “The Creation of Adam” and encounters a single naked, relatively powerless American voter. The judges put it plainly: “A fundamental precept of this nation’s democratic electoral process is that the government may not ‘take sides’ in a election contests or bestow an unfair advantage on one of several factions.”
The justices allowed that providing information and opinion – educating the public – is a legitimate function of government officials.
But how do we decide what’s political and what’s merely educational?
In the 2009 landmark case Vargas v. City of Salinas, the court returned to the distinction between information and campaigning, and the “style, tenor or timing” standard, says Thomas Brown, city attorney for St. Helena, California, and a partner in the Oakland offices of Burke Williams & Sorensen.
“The potential danger to the democratic electoral process is not presented when a public entity simply informs the public of its opinion on the merits of a pending ballot measure or of the impact on the entity that passage or defeat of the measure is likely to have,” says Brown. “The threat to the fairness of the electoral process arises when a public entity devotes funds to campaign activities favoring or opposing such a measure.”
But throughout the state, public officials increasingly turn to campaign consultants. Wave a magic wand and you can declare that politicking “educational.”
Take the city of Stanton. In the run-up to a controversial 2014 local sales tax measure, city officials in Stanton made 16 payments totaling $85,970 to Lew Edwards Group, an Oakland-based political consulting firm.
The consultant’s Stanton proposal indicates the relationship was always about winning a campaign. Sent to city officials on March 18 of that year, that document declares Lew Edwards Group “the California leader in Local Government Revenue Measures.”
“Lew Edwards Group has successfully enacted more than $30 billion in California tax and revenue measures with a 95 percent success rate, including $2.34 billion in successful tax and bond measures in Orange County alone,” the proposal says. In a separate PowerPoint document prepared for the city, company officials said they achieved political success in Orange County despite “the opposition of the OC Register in all cases.”
The company’s 2011 presentation to the California Society of Municipal Finance Officials is equally political. Titled “New Taxes: How to Get to Yes,” the presentation features a section on transforming informational studies into what sounds remarkably like campaign material. That section is called “Turning Theory into Reality: How to Convert Your City Studies and Polling Results into a Winning Campaign.”
The consultants’ website warns, “A Public Agency cannot, at any time, engage in a partisan campaign.” But the site goes on to offer advice about turning over campaign responsibilities to an outside group.
In the months leading up to Election Day 2014, Stanton residents were invited to community meetings where local elected officials, city staff and county firefighters and sheriff’s deputies warned them about Stanton’s crippled finances. When they returned to their homes, residents were hammered by official mailers predicting a public-safety catastrophe if the sales-tax measure failed. Invoices show the city (i.e., the taxpayers themselves) paid Lew Edwards for at least three mailers in the last six weeks of the campaign.
Supporters of such spending – generally public officials themselves – say government has a responsibility to educate. And now it’s possible for government officials to argue further, that they have a First Amendment right to support ballot measures. In the Vargas v. City of Salinas case, Salinas officials ultimately filed an anti-SLAPP suit against the plaintiffs, two local citizen watchdogs who had filed suit to stop the city from spending public dollars on a campaign. Revealing how far we’ve drifted from a fear of government power, a court ultimately sided with Salinas, and ordered the watchdogs to pay the city’s $200,000 legal bill. The plaintiffs have since declared bankruptcy.
There may yet be a new ending in Stanton. There, critics of the 2014 sales tax rallied, and late last year qualified a repeal measure for the November ballot.
But once again, those citizens will be fighting more than City Hall. Records obtained by the California Policy Center show Stanton officials signed a new contract with Lew Edwards Group. This time, officials say they’ll spend no more than $25,000. But like the last big contract, this one ends just days before Election Day.
Will Swaim is vice president of communications at the Tustin-based California Policy Center, and was founding editor of OC Weekly.