When do publicly funded information media become propaganda unlawfully supporting one side in an impending election? The Whittier Daily News reports that the Montebello City Council, holding a special meeting today, was set to consider the citys subsidy of a nonprofit groups newsletter that, three members told the reporter, put a positive spin on the city. Mayor Norma Lopez-Reid, who asked for the special meeting, and Councilman Bob Bagwell are up for re-election next Tuesday. The paper quotes Councilman Bill Molinari as saying, You’d have to be very naive not to think there’s not a political connection between the timing of the publication and the election.
But fellow Councilman Jeff Siccama said the city had been trying to get the latest edition of Montebello Today published for a year and a half, with the prepress work already paid for. The third incumbent not on the ballot, Rosie Vasquez, said she was bothered that the council had not seen the current edition before it went to press. “Taxpayer money is being used for this publication,” she said, “and we have an obligation to approve or not approve something paid for using the public’s money.” The newsletter is published by Montebello Tomorrow, Inc., founded in the 1970s to promote city activities, and currently supported entirely by city and redevelopment agency funds, with the publications cost coming to $12,000.
Molinaris concern that the newsletter amounts to a campaign boost for Lopez-Reid and Bagwell raises a key issue now before the California Supreme Court in Vargas v. City of Salinas which, at the risk of oversimplification, boils down to this: May a local government agency spend public funds for public education/propaganda media whose impact favors a particular candidate or ballot measure in a coming election, so long as the messages do not actually come out and say Vote for (or against) him, her or it by name? The express advocacy standard that the City of Salinas and the League of California Cities, for example argue is the law has just that permissive effectsay anything you like but the taboo words. But the two taxpayer plaintiffs in the case, Angelina Morfin Vargas and Mark Dierolf, instead contend that the qualitative thrust and net effect of the agencys media efforts are the factors that decide whether it has engaged in forbidden advocacy. The plaintiffs lawyer, Steven Andre, spells out their perspective in the current Monterey County Weekly.
In the leading case on this matter, Stanson v. Mott, the California Supreme Court in 1976 laid down the general principles that at least in the absence of clear and explicit legislative authorization, a public agency may not expend public funds to promote partisan position in an election campaign, adding that
Frequently, however, the line between unauthorized campaign expenditures and authorized informational activities is not so clear. Thus, while past cases indicate that public agencies may generally publish a “fair presentation of facts” relevant to an election matter, in a number of instances publicly financed brochures or newspaper advertisements which have purported to contain only relevant factual information, and which have refrained from exhorting voters to “Vote Yes,” have nevertheless been found to constitute improper campaign literature. . . In such cases, the determination of the propriety or impropriety of the expenditure depends upon a careful consideration of such factors as the style, tenor and timing of the publication; no hard and fast rule governs every case.
The style/tenor/timing analysis is the one argued as critical by the taxpayer plaintiffs; the city and its allies say that standard has been abandoned in subsequent legal developments which tolerate all but “express advocacy.”