Court Confirms FPPC's Authority to Punish Public Agencies That Spend Undisclosed Public Money to Influence Voters at Elections

Government agencies must disclose their spending of public money to influence voters in passing or opposing measures, or advocating for election or defeat of a candidate, a court said in upholding Fair Political Practices Commission regulations.

While several California Supreme Court decisions already make it unlawful for local agencies to spend public money to promote a partisan position in an election campaign, the Dec. 14 ruling from the Los Angeles County Superior Court upholds the FPPC’s authority to enforce State regulations that require public agencies to report and disclose this campaign-related public spending. The FPPC has since stated that it will prioritize cracking down on undisclosed public spending for advocacy in elections, and that it will seek to expand its powers to enforce these public spending laws.

The California State Association of Counties and California School Boards Association sought to invalidate two FPPC regulations thereby preventing the FPPC from enforcing them. The first regulation is a reporting requirement that requires government agencies to disclose expenditures of public money used to influence voters in passing or opposing measures, or advocating for the election or defeat of a candidate. The second regulation prohibits government agencies from using public funds to “mass mail” campaign materials that relate to passing or opposing measures, or advocating for election or defeat of a candidate, to voters.

The lawsuit alleged that the FPPC lacked authority under the Political Reform Act of 1974 to enact and enforce these two regulations. The court disagreed, holding that the FPPC validly enacted both of these regulations consistent with the purposes of the PRA to require disclosure of expenditures in election campaigns and to restrict public money from being spent in political campaigns. The petitioners also argued that the regulations were too vague  to enforce. The court declined  to overturn the first regulation because the FPPC had not yet attempted to enforce it. However, the court ruled that the associations failed to show the second regulation was too vague to enforce.

This decision came from a lower court and is likely to be appealed.

It is noted that this case was decided in the context of the landmark $1.35 million settlement between Los Angeles County, the FPPC and the Howard Jarvis Taxpayers’ Association who alleged, based upon these and other FPPC regulations, that the County impermissibly made public expenditures to support campaign activities related to 2017 County Measure “H”.  

BB&K Associate William Shepherd co-authored this Legal Alert.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.