Campaign Related Communications at Public Expense--The Do's & Don'ts
There are certain instances when it may be appropriate for a government agency to issue communications related to a campaign. However, there are very specific rules about which types of communications are allowed and how they must be disclosed to the public. The information below provides a guide of the general rules, prohibitions, and reportable activity for these types of communications.
The Act states, “No newsletter or other mass mailing shall be sent at public expense.” The Act defines mass mailing as “over 200 substantially similar pieces of mail” not including a “form letter or other mail which is sent in response to an unsolicited request, letter or other inquiry.”
The prohibitions on mass mailings at public expense include both of the following:
- Mailings that feature or include the name, office, photograph, or other reference to an elected official affiliated with the agency producing or sending the mailer, and
- Campaign related mailings.
Below the focus is on the second prohibition - mass mailings that are campaign related. Click here for more information on mass mailings that feature or reference an elected official.
Prohibition on Campaign Related Mailings
Campaign related mailings are prohibited if all four of the following criteria are met:
- Tangible and Delivered. The item sent is a tangible item such as a written document, video tape, record, or button and is delivered to the recipient at his or her residence, place of employment or business, or post office box.
- Campaign Related. The item sent expressly advocates or unambiguously urges a particular result in an election.
The determination of whether a communication “expressly advocates” is relatively straightforward and is based on whether it contains so called “magic words” of advocacy such as: Vote For; Elect; Support; Cast Your Ballot; Vote Against; Defeat; Reject; or Sign Petitions For
A mailing “unambiguously urges a particular result in an election” if it: (1) can be reasonably characterized as campaign material or activity, and (2) is not a fair presentation of facts serving only an informational purpose when taking into account the style, tenor, and timing of the communication.
- Public Funds. The agency pays to distribute the item, or pays costs, exceeding $50, reasonably related to designing, producing, printing, or formulating the content of the item including payments for polling, research, the salary, expenses, or fees of the agency’s employees, agents, vendors, or consultants with the intention of sending the item.
- Mass Mailing. More than 200 substantially similar items are sent during the course of the election including items sent during the qualification drive or in anticipation of an upcoming election.
If related to an election, payments of public moneys by a state or local agency for the following materials or
activities are clearly campaign materials or activities:
- Bumper stickers
- Door-to-door canvassing
- Mass media advertising
Mass media advertising includes television and radio spots. For other communications, the determination of whether the material or activity can be reasonably characterized as campaign related requires a case-by-case analysis of the planned communication and the context in which it is made.
The style, tenor, and timing of a communication are critical for making this determination. Other factors that assist in determining whether any specific communication can be reasonably characterized as campaign material or activity include whether the communication is:
- Funded from a special appropriation related to the measures opposed to a general appropriation;
- Consistent with the normal communication pattern for the agency;
- Consistent with the style of other communications issued by the agency;
- Inflammatory or used argumentative language.
Informational versus Campaign Material
The City Council, facing a substantial reduction in revenue if a local measure is approved by the city’s voters in an upcoming election, votes to cut numerous services if the measure is adopted. What is the City permitted to do to inform the city’s residents of the City Council’s decision relating to the local measure?
In an effort to inform the city’s residents of the Council’s decision, the City may:
- Post on its website the detailed minutes of all council meetings relating to the Council’s action, with the detailed and analytical reports prepared by the various municipal departments and presented by department officials during the meetings.
- Provide copies of a document merely listing the services and program reductions the City Council had voted to implement in a public location.
If the City decides to mail materials related to the measure to potential voters, and more than 200 items are mailed in the course of the election, the materials must be a fair presentation of facts serving only an informational purpose. Otherwise the materials may be campaign material or activity and prohibited.
For instance, the City may mail a regular edition of its newsletter containing various articles describing the proposed reductions in city services that the City Council voted to implement if the measure is adopted. However, the articles should be objective and nonpartisan. Any articles that convey a city department’s views regarding the importance of a specific service must be moderate in tone and may not urge the voters how to vote.
On the other hand, a specially-funded flyer inconsistent with regular mailings by the City unrelated to an election matter that lists the benefits of the measure in an argumentative or inflammatory manner would be considered campaign materials or activity, may subject the City to reporting under the Act’s campaign reporting provisions, and may be prohibited as an illegal mass mailing.
Style, Tenor and Timing of Communication
As stated above, the style, tenor, and timing of a communication help determine whether it is campaign material or activity. For example, if the following bumper sticker were distributed by a school district, it would not be campaign material or activity if it had no relationship to an upcoming election or ballot measure:
The same bumper sticker, however, is campaign material or activity if the circumstances surrounding its distribution indicated that the sticker is related to an election. For example, the bumper sticker above would be considered campaign material or activity if distributed by the school district simultaneously with the distribution of the following campaign flyer, using the same logotype, by a political campaign:
Finally, it is important to remember that the entirety of the communication and the factual circumstances under which the communication was made must be considered in determining whether any particular communication is campaign material or activity. Merely labeling a communication as “informational” is not determinative as to whether a communication is informational material or campaign material or activity.
Is Activity Reportable Even if Prohibited?
A state or local agency making payments for campaign related communications may become a committee subject to campaign reporting requirements if the payments qualify as contributions or independent expenditures. The reporting obligation occurs even if the communication was prohibited. Therefore, failure to comply may subject the agency to two violations – one for the prohibited communication and another for a failure to report it.
A person, including a state or local governmental agency, qualifies as a committee if it does any of the following:
- Accepts contributions of $1,000 or more ($2,000 effective 1/1/2016).
- Makes independent expenditures of $1,000 or more.
- Makes contributions of $10,000 or more.
If the payment for the communication by the agency is made at the behest of the affected candidate or committee, the payment is a contribution. Otherwise, the payment is an independent expenditure.
Additional Restrictions. Provisions outside of the Act, not summarized here, also restrict the use of public resources for campaign or private purposes and should be consulted. (See Cal. Const., art. XVI, § 6; Gov. Code §§ 3207 and 8314; Ed. Code §§ 7054 et seq.; Pen. Code §§ 424, 503, and 504; Stanson v. Mott (1976) 17 Cal.3d 206; Vargas v. City of Salinas (2009) 46 Cal.4th 1.)