I would appreciate any thoughts you may have (potentially for attribution) on the following, for a possible follow-up piece on the issue.  See the questions at the end….
 
California law is pretty clear.  Public funds can’t be used for political campaign purposes.
 
So, yesterday’s article in the Union-Trib, "Activists fault two cities over sales-tax brochures," again raises an interesting and ongoing issue of debate – the use of public funds in advance of a potential ballot measure to educate and solicit public opinion, although technically not for campaign purposes.

As a former La Mesa City Councilmember and current San Diego County Taxpayers Association (SDCTA) board member, my interest is heightened due to my city’s situation as noted in the article, yet my purpose in querying you the reader goes beyond my past and current involvement with the two entities.

Although some public agencies have no doubt exceeded a "gray area" threshold by using public funds for campaign purposes, let’s start with the given that the significant majority – like El Cajon and La Mesa – are not seeking to violate the law.  Instead, their purpose is to operate within the law, educating the public about needs and soliciting feedback to determine the possibility and feasibility of placing a measure on the ballot.  Laugh if you must.  Because, although that very description may sound like a shell game, the fact is that the current law allows for such a methodology with public funds.  Like it or not.  
 
Many consultants will scream at me, starting now.  Whatever.  You see, ballot measure consultants refer to the pre-ballot use of publicly-funded mailers and sometimes even TV and radio advertising as a legal and important "pre-election informational stage" of an overall timeline that may result in a measure being placed before voters, at which time the effort becomes a private, non-public campaign.  Although not so public, this informational stage is sometimes referred to as a "softening" phase, further implying that although educational and informational in nature, the public is being softened for something otherwise hard to swallow, such as a tax increase.  Some argue that the elected officials are the ones being softened, since they must decide to "ballot the measure."
 
In fact, many don’t realize that public funds can be used for polling as a means to determine the efficacy of placing a measure on the ballot, as well as to decide ballot language and even acceptable tax rates.  In other words, see if you have a chance before really taking a chance, while also increasing your chances.  That may sound flippant – that is not my goal.
 
For many years, public agencies such as cities, school districts and special districts have legally used government funds for educational, informational and information gathering purposes in advance of ballot proposals, including bond and sales tax measures.  Or, perhaps, at least as long as they have hired consultants to advise on the best process to consider and win ballot measures (I hear the screaming continue). 
 
As well, as long as government agencies have legally used public funds for such purposes, others have disagreed with the expenditures as improper.  And, on occasion, groups like SDCTA have weighed in with concerns about such efforts crossing the line into outright advocacy.  For example, if a tax measure is not yet on the ballot, is it then considered campaign advocacy to send a publicly-funded mass mailer indicating that a lack of government revenue will likely lead to a reduction in services?  The average taxpayer group will likely answer that question differently than will the typical tax measure consultant or government counsel.
 
Point to any ten local agencies that have passed tax measures in the last couple of decades and I’d guess at least eight of them have used public monies to inform and measure the pulse of the citizenry in advance of placing a measure on the ballot.  Legally, let me remind you.  And, before I’m held up as a hypocrite for raising this issue, my career as an elected official, consultant and government employee has placed me directly in the middle of supporting such efforts (again, legal efforts), at least one instance resulting in criticism by a media entity.  On the other hand, I can also point to a case in which I voted against using public funds for a "pre-election" effort.  Call me a flip-flopper.
 
Mea culpa out of the way, what this may all come down to is not just the difference between information and advocacy, but also the difference between legality and appropriateness.
 
That said, if you choose to potentially be quoted in a later piece, please email me your answers to some or all of the following questions.  Thoughtful responses would be appreciated.
 
1) Do you believe current California law is too loosely defined or “gray” in this arena, thus leaving it too open to interpretation as to what constitutes information versus advocacy?
 
2) Who (or what profession) is most responsible for the interpretations currently being used by government agencies to determine what they can and cannot do in this arena?
 
3) Who should be making the interpretation?
 
4) Should the related laws be changed in some way (loosening or tightening)?
 
5) Do you believe legislation should be authored to clarify or further define the line between information and advocacy?
 
6) If legislation were authored, what should be its goal (besides success)?
 
7) What didn’t I ask that I should have; and what is your answer?
 
By the way, no public monies are being utilized to solicit this feedback from you, but as fellow blogger Steve Frank would say, a large number of electrons are being terribly inconvenienced.

Have a great week!

This entry was posted on Sunday, July 27th, 2008 at 12:00 am and is filed under Blog Posts.