Steven Andre: How Far Can Government Go?
Thursday, October 25, 2007
The issue in Morfin Vargas v. City of Salinas has to do with what a government may do to influence voters’ opinions on an election issue. Specifically, may it use public funds to support one side in the election contest? The Vargas case really has nothing to do with the merits of Measure O.
Measure O was designed to reduce a city tax on utilities. Its supporters believed mismanagement of city finances by city officials had resulted in overspending and poor prioritization. City officials made an unusual response to Measure O. While complaining that the city had no money, they spent more than $250,000 in public funds to oppose Measure O. They did this by a newsletter sent to every Salinas household, a leaflet and extensive materials on the city’s website. These city publications all expressed the argument of the opponents of Measure O that devastating consequences would ensue should it pass.
In retrospect, the position of Measure O supporters – that the city’s finances have been poorly managed – has been vindicated. After Measure O failed, the city approved substantial increases in salaries and benefits. Then, loss of the anticipated share of vehicle registration funds and other losses unexpectedly reduced the city’s revenue by about $8 million dollars – an amount identical to that received from the utility tax. The horrible consequences promised by Measure O opponents and identified in the city’s materials as following from this loss of revenue – rampant graffiti, closed parks, methamphetamine labs, bio/chemical terrorism, abandoned vehicles and illegal residences – did not happen. Instead, the city did a little belt tightening and adopted some of the proposals of the Measure O supporters to better manage public resources.
But city administrators continued to mismanage and squander millions in public funds, paying large salary and benefit increases, protecting public service monopolies and maintaining “white elephants” like city-owned golf courses and a community center. This continuing extravagance resulted in national embarrassment when Salinas proclaimed that it was closing its libraries. Of course this predicted crisis did not materialize either. When the voters approved a temporary tax increase (Measure V) to bail out the spendthrift city officials, the city government didn’t learn its lesson. The bailout money was used to fund millions more in new pay and benefit increases and to hire more managers in an already bloated and top-heavy bureaucracy.
The problem with what city administrators did in campaigning against Measure O is not merely that they wasted scarce public funds to do this. Their conduct raises a fundamental issue concerning the role of American government and its relationship with the governed. This has to do with the question of who ultimately governs in our constitutional form of government – the people or government officials. Our California Supreme Court addressed this question in its 1976 landmark decision, Stanson v. Mott. In Stanson, the Court recognized that there are constitutional limits on what government may do to influence the populace. When it comes to elections – where the sovereign people seek to govern – government is forbidden from raiding the public treasury to seek to skew this process. In other words, government is not allowed to tell us how to think – at least not in the election context.
Voter satisfaction or dissatisfaction with government policies is ordinarily expressed at the ballot box when an administration is retained or is voted out of office. Public officials are free to promote an elected administration’s policies in the ordinary course of governance. But when the government policy in question is the subject of an election, a different problem is presented. Because this is an area in which the sovereign electorate seeks to govern, efforts by public officials to engage in partisan lobbying of the voters’ ballot decision runs contrary to the fundamental constitutional precept recognized by the Supreme Court in Stanson that “government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions.”
Salinas city officials crossed the line by using public funds on the eve of an election to distribute one-sided materials supporting the view that Measure O would have harmful consequences for Salinas residents. The broader, more sinister and Orwellian ramifications of allowing government agencies to engage in such expenditures to influence how we think about election issues should be carefully contemplated. The campaign propaganda distributed by Salinas city officials was unmistakably designed to frighten voters into believing passage of Measure O would mean devastating losses of significant services, more crime, urban blight and other awful consequences.
The voice of government is powerfully persuasive and fear is a strong motivator. Just how far we are willing to let government scare us is a timely issue. Some government agencies are increasingly seeking to turn the “home of the brave” into the haven of the scared by incessantly berating us with the shadowy threat of terrorism. We need to consider how much freedom we are prepared to cede to government for the perception of increased security.
Our nation’s Founding Fathers’ distrust of government and desire to limit government’s ability to perpetuate itself at the expense of individual liberty lies at the heart of the Vargas case. Vargas asks the Supreme Court to reaffirm its decision in Stanson, which draws the line restricting government’s ability to seek to influence how we think about an issue and preventing such intrusion, at least in the electoral process.
At the core of this constitutional analysis is the basic notion that we tell our government what to do, not the other way around. We should neither desire nor trust government’s view on how we should cast our ballot. This is an area where the courts should not allow government to try to influence or scare us into making a particular decision.
The dark alternative to the restriction recognized by the Supreme Court is that government agencies could divert unlimited public funds to erect billboards, buy television and radio ads and full-page ads in the Monterey County Weekly effectively stating, “Big Brother says you are in terrible danger and will be killed by terrorists unless you vote for Measure X.”
STEVEN ANDRE IS THE ATTORNEY FOR ANGIE MORFIN VARGAS AND MARK DIEROLF, PLAINTIFFS IN VARGAS V. CITY OF SALINAS. HE PRACTICES LAW IN CARMEL, EMPHASIZING FIRST AMENDMENT ISSUES AND HANDLING APPELLATE MATTERS AND A RANGE OF LITIGATION CASES.