In 2006 when Washoe County District Attorney Richard Gammick was accused of using his physical office in the courthouse to campaign against a ballot measure in violation of a state law, he responded, “Yeah, it’s all bullshit. That’s not what the law says.”
Gammick argued that the law applies only to the use of political funds for political advertising. Well, this year a public agency has just spent an estimated $20,000 to mail advertising on two new ballot measures.
The Regional Transportation Commission mailed out 84,500 copies of a piece that warns what might happen to local traffic if two ballot measures, RTC 2 and RTC 5, are not approved.
The front of the mailer says, “AVERAGE TRAFFIC DELAYS IN WASHOE COUNTY WILL GROW FROM 4 TO OVER 30 MINUTES IN 10 YEARS!”
In addition, at last week’s “Green Summit,” RTC spokespeople were advocating approval of both ballot measures, though an RTC spokesperson says the agency is taking no position for or against the measures.
RTC deputy director Derek Morse says the mailer is simply informative.
“Your question supposes that we’re on one side of this issue or the other as advocates of one side or the other, which we’re not,” he said. “We’re simply putting out information to the public so that they can make an informed decision, and they have facts in front of them as they make this important decision.”
But angry residents who contacted the News & Review seemed not to see it as a neutral or informational piece. “Notice that there is no disclaimer,” wrote one. “And should they be advocating a ballot question? Isn’t political activity barred from [a] public agency? Isn’t this violating The Hatch Act??”
Ten people chosen at random on Sunday at the downtown Reno post office asked to read the mail piece all said they considered it to be a campaign mailer.
The piece was not mailed to an “all households” list. Instead, it was sent only to registered voters.
Nevada Revised Statute 261.554 says that “a public officer or employee shall not request or otherwise cause a governmental entity to incur an expense or make an expenditure to support or oppose: (a) A ballot question. (b) A candidate.”
RTC 2 would hike the sales tax one-eighth of 1 percent, the proceeds going to a local option transportation fund. RTC 5 “adjusts” fuel tax rates to increase them, supposedly to recover $2.6 billion in “lost purchasing power” expected in the next three decades. Enactment of RTC 5, the mailer says, would have the effects of “reducing road congestion, stimulating our local economy, and saving us all time and money.”
“Every statement there is a factual statement,” Morse said, echoing what most campaign officials would say about their campaign leaflets. “It’s like if someone says it’s light outside.” (Interestingly, one of the residents at the post office who read the mailer said something similar—”It’s a political thing as sure as the sun is up.”)
However, techniques were used in the text of the mailing that are common campaign practices. For instance, the RTC was selective in the information it included, excluding information that would damage the chance of passage of the ballot measures.
For example, it claims in the mailer that RTC 2 would “cost the average person $1.94 per month,” but does not give the total per month the average person already pays and the total she would pay per month after the $1.94 was added. By limiting the information provided to the $1.94, the passage of RTC 2 is made to seem trivial, a case of the kind of spin often seen in political campaigns.
In addition, some of the claims in the mailer are more subjective than saying, “It’s light outside.” Construction of more roads, for example, which the mailer suggests as one of the uses for the proposed tax increases, can lead to what traffic engineers call “generated traffic”—more, not fewer, cars on the road, which would not necessarily lead to less congestion.
Two years ago, RTC used its tax-funded website to post material critical of state ballot Question 2, which changed the way condemnation is done in Nevada. The RTC material claimed the measure “would most likely cause enormous increases in the amount of litigation. … Recent media reports state the Nevada initiative is funded by out of state interests.”
An RTC spokesperson that year said the agency’s use of the web site for political purposes was ameliorated by its posting links to material that was critical of the ballot measure. However, state law does not recognize that supposed balance—it bars use of public expenditures “to support or oppose.”
While using public resources to advance the cause of RTC interests, the RTC has also tried to bar the use of public property by citizens trying to circulate their own ballot measure petitions. On May 6, 2004, two residents were arrested, handcuffed, and hauled off to jail for seeking signatures on petitions at the downtown Reno bus depot. The city refused to pursue the case for RTC and court rulings since then have supported the right of citizens to gather signatures on publicly owned property.
Morse, asked how opposition campaigns can hope to compete against the kind of money governments can spend, declined to answer on the ground that the RTC mailer is not campaign material.
Ethics Professor R0bert Denhardt at the Arizona State University School of Public Affairs said, “Governments differ on their policies with respect to providing information about electoral propositions, but simply reading the [RTC mailing], I would say that this is at least questionable.” He said agencies should have written policies on how to create such materials. RTC has no such policy.
Former Republican Party official and Nevada Assembly speaker Byron Bilyeu says it might be possible for an opposition to compete with the kind of effort RTC is making.
“You might be able to,” he said. “You know, you could tap into some of the organizations right now that are out there, the anti-tax people, the various ones like that. You tap into those and try to get them interested. Of course, there’s always the possibility of forming your own organization.”
But Bilyeu says the opposition would not have a level playing field, and the use of tax dollars in this way is unfair.
“In this media age we live in, it costs money.”