Campaign Advertisements by Government Agencies
In recent years, the FPPC has seen a troubling increase in the number of cases where government officials spend public money to campaign for or against ballot measures without disclosing that spending to voters before the election, if ever. The most common scenario is where a city, county, or special district uses public monies to produce communications - letters, flyers, radio, or television spots - intended to persuade voters to support or oppose ballot measures instead of simply providing voters with impartial information. When government officials fail to disclose this type of spending before an election, they violate the Act by denying voters legally required information about who is trying to influence their votes. A “fundamental precept of this nation’s democratic electoral process is that the government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions.” Stanson v. Mott (1976) 17 Cal.3d 206, 218.
The Law – Communications by Government Entities
Government agencies that make contributions or independent expenditures supporting or opposing ballot measures (including bond measures) or candidates are subject to campaign advertisement disclosure and reporting requirements similar to other individuals and entities under the Act. Further, the Act prohibits government agencies from sending advertisements in the form of mass mailings.
When is a communication a contribution or independent expenditure?
A government agency makes a contribution or independent expenditure when it pays for a communication containing express advocacy. A communication by a public agency contains express advocacy if it:
(1) Contains express words of advocacy such as Vote For; Elect; Support; Cast Your Ballot; Vote Against; Defeat; Reject; or Sign Petitions For
(2) Unambiguously urges a particular result in an election. This means the communication is either clearly campaign material for an election or can be reasonably characterized as campaign material given the content and context of the communication.
Regulation 18420.1 is a disclosure provision that does not prevent government agencies from speaking but states that “a communication . . . unambiguously urges a particular result” if it “is clearly campaign material or campaign activity” and gives some examples of what would be considered campaign material if related to an election. Things like bumper stickers, billboards, door-to-door canvassing, or other mass media advertising, which includes television, electronic media, or radio spots would be examples of communications that may fall within the definition but must be “campaign material” or “campaign activity,” that are unambiguously urging a particular result in an election.
The regulation goes on to state that a communication can also rise to the level of express advocacy “[w]hen considering the style, tenor, and timing of the communication, it can be reasonably characterized as campaign material and is not a fair presentation of facts serving only an informational purpose.”
Bottom line? A television advertisement that simply showed viewers a city’s newsletter would not become “campaign activity” under the regulation simply because it was shown on television. The same is true if that newsletter was posted to the city’s website. But if the tv ad included language about the election and the positive points of a ballot measure in the election, then it would qualify as a campaign expenditure.
For other forms of communications, the determination of whether the material or activity can be reasonably characterized as campaign related requires a case-by-case analysis of the communication and the context in which it is made. The “context” includes the style, tenor, and timing of a communication. Other factors to look at 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 as 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 uses argumentative language.
The Law – Mass Mailings at Public Expense
In addition to the reporting requirements for all advertisements paid for by government agencies, the Act contains specific provisions prohibiting mass mailings 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 (Visit the webpage Communications Sent Using Public Funds for more information on mass mailings that feature or reference an elected official)
- 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 their residence, place of employment or business, or post office box.
- Campaign Related. The item sent contains express words of advocacy or unambiguously urges a particular result in an election. (See above for determining when a communication unambiguously urges a particular result)
- 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.
Government Code sections 82013, 82015, 82025, 82031, 82041.5, 89001, and 89002
CA Code of Regulations, title 2 sections 18420.1 and 18901.1
Examples from FPPC Enforcement Cases and Advice
Note: 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 or campaign related. Citations are provided for examples from advice letters and Enforcement cases.
When does Informing the Voters cross into Campaigning the Voters?
Mailers - Informing the Voters - Hypothetical: The city mails materials related to a local measure to potential voters giving a fair presentation of facts serving only an informational purpose.
- The city sends a mailer containing a survey regarding what are the city residents’ priorities for the future use of sales tax funds from a local measure. The mailer does not expressly advocate for the measure or unambiguously urge a particular result in the election. The proposed mailer solely requests that residents provide their opinion regarding priorities for spending sales tax funds (from the measure) in the future. The mailer includes the text “Your Measure C Tax Dollars at Work” and “Join the Conversation – Complete This Community Priorities Survey Today!” (Norton Advice Letter, A-20-047.)
- The mailers concerning a local measure did not contain express advocacy. The mailers were funded by the city's general fund, not a special appropriation. Further, the mailers were generally informational and not argumentative, but instead moderate in tone. (16/441; City of Glendale)
- The mailers concerning a local measure did not contain express advocacy. The mailers were informational, except for the few instances when it used adjectives to describe a building’s condition, such as "corroded," "deteriorating," "outdated," "worn-out," and "aging." However, in this circumstance these descriptors are not sufficiently inflammatory or argumentative to constitute campaign activity. (16/19768; Santa Ynez Valley Union High School District)
- The mailers concerning a local measure did not contain express advocacy. The mailers were funded by the local entity's general fund, not a special appropriation. The mailers did not contain inflammatory or argumentative language. The mailers were consistent in style but not within the normal communication pattern for the agency. While this normally would be a cause for concern, the local entity distributed these mailers approximately four months prior to the election date. (16/19853; Monterey Peninsula Regional Park District)
- The mailers concerning a local measure did not contain express advocacy. However, parts of the mailer came close to meeting the standard of unambiguously urging support for a measure. For example, the mailer included pictures, signatures and statements of non-elected officials, such as the chief of police, that stated the potential impacts of the measure. However, these statements are not sufficiently inflammatory and argumentative to conclude the mailer constituted campaign activity rather than informational material. (19/568; City of Martinez)
Mailers - Campaigning the Voters – Hypotheticals: (1) The mailers related to a city measure are sent to potential voters giving a one-sided presentation of facts serving to argue the city’s position, and more than 200 items are mailed leading up to the election. (2) A specially funded flyer inconsistent with regular mailings by the city that lists the benefits of the measure in an argumentative or inflammatory manner would be considered campaign materials or activity.
- Mailers detailed the potential benefits to the city and its citizens that would result from the passage of a local measure. Mailers included the following claims: “It’s About Their Future” next to a picture of children playing. “Measure V will Help Protect our Seniors and Their Services from Budget Cuts” next to a picture of a female senior citizen. “Measure V: It’s About Protecting You.” Measure V would provide more police officers, more firefighters, safer roads, and improved services for seniors. Measure V would provide funding to improve public safety. A quote from Rialto’s police chief that Measure V “will provide the funding necessary to keep our neighborhoods safe.” Measure V will provide funding for Senior Citizens. Measure V will Protect Rialto’s Police and Fire Services. Measure V will fix potholes in our streets. Measure V is a tax on a few wealthy oil companies in Rialto. Measure V is NOT a tax on residents or other Rialto businesses. “Who Benefits from Measure V on the November 6th Ballot?” The mailer answered that senior citizens, firefighters, police, and the citizens of Rialto all would benefit from Measure V. On both the front and back of the mailer it said, “Remember to Vote on November 6, 2012.” (12/869; City of Rialto)
- The mailer concerning a local measure did not contain express advocacy, but it did contain language that could be characterized as the city unambiguously urging a certain vote for the measure. The city distributed this mailing within weeks of the election. (18/1206; City of Porterville)
- The local entity distributed a special issue of its bi-monthly newsletter, which brought attention to a local measure in advance of the election. The special issue newsletter showed the following statements: “substantial cost-savings for ratepayers could include $15.6 million one-time savings that could provide an immediate $650 rebate per customer, and $2.7 million annual savings that could reduce customer’s sewer rates by up to 28 percent. Mesa Water believes the study is valid and the findings verifiable;” “study shows substantial cost-savings for customers are possible if Mesa Water and the Sanitary District consolidate, including: $15.6 million one-time savings that could provide a $650 rebate per customer [and] $2.7 million annual savings that could reduce customers’ sewer rates by up to 28%.” The local entity strategically bolded numbers to emphasize the favorable but speculative benefits of consolidation. (16/19813; Mesa Water District)
- The local entity sent a mailer that expressly advocated a vote for the local measure and against other local measures. The interim City Manager paid for postage with his personal funds. However, copies of the mailer were printed from the local entity’s copy machine, so some public resources have been expended on the mailer. (16/19924; City of Dunsmuir and Randy Johnsen)
Website - Informing the Voters – Hypothetical: A local entity posts 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.
The local entity engaged in permissible activity by making information available to members of the public who chose to visit the special web page created for the local measure. (16/19842; City of Riverside)
Analysis of the Measure - Informing the Voters -Hypothetical: A local entity provides copies of a document merely listing the services and program reductions the City Council had voted to implement in a public location.
Advertisements (also website, flyers, and handouts) - Informing the Voters
A local measure would have authorized an increase to the county sales tax to fund transportation projects. The local entity paid for communications related to a Transportation Expenditure Plan ("TEP.") This was an informational campaign to promote and educate the public about the adopted 30-year transportation plan for the county, including projects that incorporated the funding from the local measure. The materials related to TEP did not specifically encourage voters to pass the local measure and did not mention the election, or that the local measure was even up for a vote. The tone of the advertisements, website, flyers and handouts was informational, and the language was not inflammatory or argumentative. The style and tenor of the materials appears consistent with other communications issued by the agency. (17/289; Contra Costa Transportation Authority)
Advertisements (also website, flyers, and handouts) - Campaigning the Voters
The local entity’s advertisements unambiguously urged a vote in favor of the local measure when considering the style, tenor and timing of the communication. Previous advertisements promoted city programs and events, none related to pending ballot measures. Previous mailers also used concise language, pictures, and graphics to convey quick and simple messages. These advertisements, on the other hand, were long narratives concerning the merits of and need for the local measure and contained inflammatory and argumentative language, such as “state of California has taken approximately $100,000,000 of Fountain Valley’s money – causing reductions to the services our residents rely on,” “[w]e all know that adequate firefighter staffing is necessary to prevent crime and save lives,” and “reliable source of locally controlled funding that can’t be taken by Sacramento,” to persuade residents to vote for the local measure. (16/20109; City of Fountain Valley)
Bumper Stickers - Informing the Voters – Hypothetical: 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:
Bumper Stickers - Campaigning the Voters – Hypothetical: The same bumper sticker 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 below 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:
Television - Informing the Voters – Hypothetical: The local entity airs a candidate forum on its cable access station where each candidate is given an opportunity to participate.
The local entity may televise video recorded arguments regarding a local measure so long as the proponent of the local measure and at least one opponent, or their respective representative, are invited to participate in equal numbers. The local entity must ensure a fair and balanced approach for each side. (Casher Advice Letter, A-18-187(a))
Television - Campaigning the Voters – Hypothetical: A local entity runs commercials on cable TV stations highlighting the benefits of a tax increase measure the city voted to put on the ballot and encouraging residents to vote.
A local entity runs television commercials before the election included the words: “The Los Angeles County Homeless Initiative,” the slogan “Real Help. Lasting Change,” and the words “Measure H on the March 7 Ballot,” “Are you ready? Vote March 7.” (17/150; 18/1258; County of Los Angeles – Civil Settlement Attachment and Administrative Settlement)
Radio - Informing the Voters
A County Treasurer-Tax Collector may appear, as part of their duties, in a 30-minute public affairs block of radio time purchased by the local entity. The public radio time is intended to raise awareness of a county program. The block will not contain any reference to the treasurer position being an elected position or to the next election cycle where the treasurer will likely be seeking re-election. (Carden Advice Letter, A-13-149)
The Reporting Requirements
If a government agency makes independent expenditures totaling $1,000 in a calendar year or makes contribution totaling $10,000 in a calendar year, it will qualify as a committee.
A government agency that qualifies as a committee must report its activity on campaign statements and reports and include disclaimer information on its advertisements like any other committee and whether the advertisement is a contribution or independent expenditure depends on whether the agency coordinates the communication with the relevant candidate or ballot measure committee.
For independent expenditure committee reporting requirements, see Campaign Manual 6 – Information for Independent Expenditure Committees. For advertising disclosure requirements see Campaign Advertising - Requirements & Restrictions
For major donor committee reporting requirements, see Campaign Manual 5 – Information for Major Donor Committees. For advertising disclosure requirements see Campaign Advertising - Requirements & Restrictions
Communications containing express advocacy by government agencies paid for with public funds are prohibited under state laws outside of the Political Reform Act. However, the Act still requires disclosure of the expenditures.
Additional Enforcement Cases & Advice Letters (not referenced above)
The County of Sacramento failed to file campaign statements and reports disclosing expenditures for communications supporting a statewide proposition and local ballot measure.
The Rainbow Municipal Water District (“District”) used mailers to oppose a Local Agency Formation Commission (“LAFCO”) proposal seeking to merge the District with Fallbrook Public Utility District, causing them to qualify as an Independent Expenditure Committee. The District failed to timely file two semiannual campaign statements, sent a mass mailing featuring a governmental official, and sent the mass mailing at the publics expense, opposing the LAFCO proposal.
Communications related to a ballot measure planned by the City are independent expenditures or contributions under the Act that may qualify the City as a campaign committee subject to campaign reporting and are potentially prohibited mass mailing if the communications unambiguously urge a particular result in an election. In regard to the communications identified by the City, and based on the facts provided, the communications with the exception of the proposed Public FAQ unambiguously urge a particular result in an election that may qualify the City as a campaign committee subject to reporting and are prohibited to the extent the communications are a mass mailing.
The Act’s mass mailing provisions do not prohibit a City from sending a mass mailer that does not expressly advocate for a candidate or measure or unambiguously urge a particular result in an election, but rather requests City residents provide feedback regarding priorities for spending tax funds from a measure that has already passed.
A City’s Facebook post “tagging” elected City officials could potentially result in a contribution unless each candidate has the opportunity to be included in a fair and balanced way. Additionally, where “tagged” elected City officials’ Facebook accounts include express advocacy, reference a candidate, or urge a particular result in an election, the tagging may result in a contribution.
A city may use a vendor to conduct a public opinion survey of City voters to obtain feedback on key issues facing the community without triggering campaign reporting or other disclaimer requirements under the Act so long as the survey does not constitute campaign activity. Although a person's obligation to report expenditures in support of or in opposition to a ballot measure does not begin until the matter becomes a measure, payments made to conduct a survey may later become reportable expenditures if the subsequent use is for a political purpose such as influencing the outcome of an election. A City providing survey data to a committee that either requests the information or uses the information for political purposes results in a nonmonetary contribution to the committee but making the results of a survey available to the public would not result in a contribution.
A local Fire Protection District paying circulators to gather signatures for the purpose of submitting a LAFCO action to local voters for confirmation or rejection of the action constitutes an “expenditure.” If and when the Fire Protection District spends more than $1,000 for the gathering of signatures on written protests, the District would qualify as a committee and would be required to file campaign reports under the LAFCO reporting provisions.
Email distribution of a newsletter does not implicate or violate the mass mailing provisions of the Act, but a payment of public funds by a state or local governmental agency in connection with a campaign-related communication is either a contribution or independent expenditure, which may qualify the agency as a committee subject to the Act’s reporting requirements.
Although an endorsement is not a “payment,” and therefore not considered a “contribution” to a candidate’s campaign, an endorsement to a candidate may become a contribution or an independent expenditure when a payment is made in connection with the endorsement. If an agency makes a payment to publicize its endorsement of a candidate in a newspaper advertisement, the payment will be considered a contribution to the candidate if it is made “at the behest” of the candidate or an independent expenditure.
While the Act's mass mailing provisions do not apply to telephone messages, text messaging, and electronic mail, a payment of public funds by a state or local governmental agency in connection with a campaign related communication may qualify the agency as a committee subject to the Act's reporting requirements. However, telephone messages, text messages, and electronic mail limited to factual information regarding a traffic accident or a vaccination program are not considered campaign related communications.
How to Request Advice
If you have questions about your obligations under the Act you can request advice directly from FPPC staff