FPPC Ups the Ante on Illegal Expenditures

Thursday, January 3, 2019

Page 9

IN MY OPINION (Column)

FPPC Ups the Ante on Illegal Expenditures

By JON COUPAL

Over the last several years, this column has exposed multiple instances of government entities using taxpayer dollars for political advocacy, a practice that is illegal under both state and federal law. Because progress in stopping these violations has been difficult, taxpayers will be pleased to hear that on December 20th, California’s campaign watchdog agency, the Fair Political Practices Commission, conducted a hearing on illegal activity by the Bay Area Rapid Transit District (BART).

The FPPC stated that BART used public funds to pay for a campaign of “YouTube videos, social media posts, and text messages to promote Measure RR, which authorized BART to issue $3.5 billion in general obligation bonds.” Under California law, spending money on a political campaign to pass the bond measure caused BART to qualify as an “independent expenditure committee” and required it to file campaign finance reports, but the transit agency ignored the requirement.

“BART failed to timely file two late independent expenditure reports in the 90-day period preceding the November 8, 2016 General Election; failed to timely file a semi-annual campaign statement for the period covering July 1, 2016 through December 31, 2016; and failed to include a proper disclosure statement in its electronic media advertisements,” the FPPC said.

The FPPC imposed a fine of $7,500, which critics of BART, including Senator Steve Glazer, rightfully complained was inadequate and no deterrent to future misconduct with taxpayer funds. In fact, the minimal fines may incentivize illegal activity because the ROI (return on investment) is frequently in the millions, if not billions, of dollars. Not only that, because the fines themselves are paid with taxpayer dollars, there are rarely any real-world consequences imposed on public officials who misappropriate public funds for political advocacy.

But things may be different now. In addition to imposing the fine on BART, the FPPC also directed its staff to prepare a letter to the California Attorney General and local District Attorneys asking for criminal prosecution of these cases.

It’s about time.

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 “Such contributions are a form of speech, and compelled speech offends the First Amendment.” Smith v. U.C. Regents (1993) 4 Cal.4th 843, 852.

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.” Stanson v. Mott (1976) 17 Cal.3d 206, 218.

While taxpayer organizations have been successful in several lawsuits challenging these illegal expenditures, they haven’t fully deterred lawbreaking by the state or local governments. The recommendation of the FPPC to prosecute these cases under criminal statutes could be just the shock that public officials need to bring them into compliance.

The FPPC letter in the BART case could also prove to be a real headache for Los Angeles County. In March of 2017, the county placed Measure H, a sales tax hike, on the ballot. The County’s use of nearly a million dollars of public funds for the political campaign unquestionably crossed the line into political advocacy and the FPPC found probable cause to charge L.A. County, as well as the individual members of the Board of Supervisors, with 15 counts of campaign finance violations.

Taxpayers are hopeful that California’s Attorney General and District Attorneys take the FPPC letter recommending criminal prosecution seriously. Much lip service is paid to protecting the integrity of California’s election process.

Here’s an opportunity for those charged with enforcing the law to do something meaningful to protect both election integrity as well as taxpayer dollars which should never be spent taking sides in election contests.