Monday, October 27, 2008

Court Holds That Government Can Spend Money To Create And Promote Future Initiatives

The Court of Appeal has clarified when public agencies can spend tax dollars on proposed measures. In Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Association of Governments (here), a taxpayer group contended that the use of public funds to create and promote a sales tax extension constituted an unlawful use of public funds. The public agency responded by filing an anti-SLAPP motion, which the trial court granted. The plaintiff appealed and the appellate court affirmed. The court held that the public agency and its representatives had a First Amendment right to "issue reports and take positions on issues of public interest relating to their official duties." The court next held that the plaintiff could not show that the defendant's activities were unlawful. Because all the spending occurred prior to the qualification of the measure for the ballot, the rule prohibiting the use of public money in political campaigns was not violated. Consequently, the court held that a public agency may, in furtherance of its mission, hire a polling firm to determine how a proposed measure should be structured, and issue public reports advocating the proposed measure. "Although a government agency cannot spend public funds in a partisan campaign for the passage or defeat of a ballot measure, we conclude that, in this case, the activity of SBCAG was not electoral advocacy because it was in furtherance of its express statutory duties and occurred before Measure A was qualified for placement on the ballot. "

There is much to be said for this decision. If a governmental agency has the power to put a measure before the electorate, it surely has the right to determine how the measure may best be presented to the voters, and to build a record justifying the need for the measure. Of course, once the measure qualifies for the ballot, it becomes a partisan measure and public funds shouldn't skew the electoral balance. (But even then, of course government agencies have the right to express their support or opposition to a measure on the ballot; they just can't expend public funds to promote a particular electoral outcome.)

This case simply applies a line recognized in prior cases. It seems unlikely that the California Supreme Court would grant review.

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