Thursday, Oct. 5, 2006| Coming soon to a mailbox near you: A four-page color mailer designed to educate you about problems at Lindbergh Field. With happy pictures of tow-headed children, rose-colored sunsets and wide-open beaches.
Proponents say the brochure isn’t a campaign piece for the airport vote that is five weeks away. They say the literature is purposely bland, full of lawyer-reviewed language that ensures it doesn’t violate state law. It doesn’t even mention the upcoming ballot initiative, they say.
Opponents say it is illegal, a misuse of public funds and nefariously timed to influence absentee voters getting their ballots next week.
The truth lies somewhere in between.
Public agencies are prohibited from advocating for ballot initiatives. The airport authority cannot spend its own revenues – generated from fees charged to passengers, shopkeepers and airlines – to urge voters to vote yes or no. But election law experts say California law leaves a large gray area between education and advocacy.
The mailer, which is being sent to the homes of 766,400 repeat county voters, was one of two planned brochures part of the airport authority’s ongoing $3.8 million public outreach program. That effort, led by Gable Cook Schmid Public Relations, a San Diego firm, has been criticized for excluding viewpoints contrary to the authority’s – that Lindbergh Field won’t work in the long term.
When the brochure began arriving in mailboxes earlier this week, Miramar opponents seized on it. At a Wednesday morning press conference, City Councilmembers Donna Frye and Jim Madaffer said the mailer was a campaign mailer masquerading as voter education.
Frye shook the glossy mailer as she spoke. With her voice rising, she denounced the brochure for trying to sway voter opinion. “This type of campaign outrage will not work,” she said.
By Wednesday afternoon, airport authority President/CEO Thella Bowens had canceled a planned second mailing, which was supposed to contain arguments from both airport proponents and opponents. The decision, which was made sometime Wednesday, was not related to the press conference or opponents’ criticism, said authority spokeswoman Diana Lucero.
“We just don’t think there would be enough time for people to read it and understand it and benefit from it,” Lucero said.
The second brochure was supposed to be sent around Oct. 15, she said. But printing, labeling and prepping it for delivery would’ve taken too long, she said.
Election law experts questioned the authority’s reasons for sending the mailers.
“Their motive may be (electioneering) and surely is in most of these cases,” said Daniel Lowenstein, an election law professor at University of California, Los Angeles. “But having that motive doesn’t make it illegal.”
Public agencies often send educational mailers out close to Election Day, Lowenstein said. But the close timing does not alone make the mailer a violation. Election law attorneys know this, he said, and are able to take advantage of the law’s vagaries. Close cases are typically resolved in defendants’ favors, he said.
Other election law experts echoed his perspective.
“The line between education and promotion, you certainly can cross it,” said Floyd Feeney, an election law professor at the University of California, Davis School of Law. “But … unless it’s pretty egregious, the courts would not find that there’s a problem with it,”
John Dadian, political consultant for the anti-Miramar group No on Prop A, said he intended to file a complaint Wednesday with the California Fair Political Practices Commission, which enforces campaign disclosure and lobbying laws.
But Lowenstein, a former FPPC chairman, said the commission isn’t the right venue.
“What they should do is say they’re going to bring it to the attention of the district attorney,” he said. “They’re just trying to protest it and get some press for it. That’s perfectly legit.”
Jack Orr, an Oceanside political consultant, said the mailer shows that the authority is using an expensive political technique called “ballot chasing.” That practice aims direct mail pieces at absentee voters close to the time when they receive their ballots. But several people said the technique is typically employed by political action committees – not public agencies.
Of the county’s 1.3 million registered voters, 300,000 receive an absentee ballot. They will be mailed next week. Lists of voters are available from the county registrar; they include names, addresses and 20 years’ worth of voting history.
Orr received the brochure Tuesday. He thought the pro-Miramar political action committee had sent it, until a reporter told him the authority had paid for it.
“In my opinion, this is cynical,” said Orr, who is not involved with the airport campaigns. “It is right on the borderline of corrupt. I said corrupt, I didn’t say illegal. It uses public funds to quote-unquote educate. And everything in here is designed to say we need a new airport. That’s what this says. … This doesn’t even come close to being objective.”
Steve Erie, a political science professor at University of California, San Diego, said the ballot chase was a trademark of political consultant Tom Shepard, who has been retained by the airport authority.
“Everybody believes that it’s effective,” said Erie, who supports a commercial Miramar airport. “Look at how much it’s used in California. … Shepard is a master of local ballot initiatives. That is one of his bread-and-butter initiatives, so I’m not surprised he’s trying to do that.”