FPPC Studies Licensing Paid Consultants in Election Races

The state’s Fair Political Practices Commission, responsible for making sure that politicians disclose their finances, is considering a proposal to license paid campaign consultants, an unprecedented step that the agency’s chairman says would give it indirect control over the content of political literature and advertising.

Commission Chairman Dan Stanford acknowledges that licensing consultants is a “bold new frontier,” but he says it is the only way the agency can combat misleading advertising, deceptive political mail and the general mudslinging that mars some state and local races.

The panel has scheduled its first public hearing on the matter for Tuesday in Los Angeles. But some consultants and political experts are already raising objections that the scheme is unrealistic and sure to run afoul of the U.S. Constitution.

‘A Very Scary Thing’

“It has the potential of being a very scary thing,” said Michael Berman, partner in the Berman and D’Agostino consulting firm of Los Angeles. “Political content is subjective, and it is the basis of our right to free speech in America.

“To have any government body--other than the courts in the normal libel or slander actions--sit as regulator of content in any sense is a tremendously . . . Orwellian thing.”

Yet Joseph Cerrell, a nationally known consultant from Los Angeles and president of the American Assn. of Political Consultants, said he would not oppose the move because “to become a political consultant all you have to say is ‘I’m now in the business.’ ”

And Stanford says the state already licenses a variety of professions, including attorneys, teachers, doctors, announcers for professional karate matches, manufacturers of oleo and brake fluid, and even people who collect wild burros or feed garbage to pigs.

“You can’t practice law, cut hair or catch fish without a license,” Stanford said. “Yet you can, without even opening an office or having a business card, ruin somebody’s reputation, destroy their family and destroy their livelihood with no existing, sufficient remedy, fear or retribution.”

Stanford said current commission guidelines leave little recourse for the agency against consultants who are unethical or cause their clients to break guidelines. Within the last year, the commission received the power from the Legislature to fine consultants for “aiding and abetting” their clients’ failure to disclose campaign financial matters.

But the new proposal, which Stanford says he will send to the Legislature in early April, would go substantially beyond that. The commission would require consultants--roughly defined as someone paid to develop strategy, mailings and direct a campaign--to register with the agency and pay a nominal fee. Under the proposal, the state would not require tests or educational standards for consultants, as it does for other professions.

Three Areas Targeted

Once the consultant is licensed, according to Stanford, the panel would regulate three areas:

- Financial disclosure. Consultants would be required to list their financial interests, as are elected officials. This would allow the public to discover, for example, that a consultant had more than a professional interest in a local rent control ordinance if he or she also owned several apartment houses. The requirement would also show how much money consultants earn. Disclosure may also be extended to include investors in a consulting firm, one possible way to prevent the use of paid campaign consultants as a funnel for illegal contributions, as is alleged in the current legal case against San Diego Mayor Roger Hedgecock.

- Business practices. The commission would act as a protection agency for politicians, guarding them against poor performance or unreasonable fees by consultants.

- Ethics. The most controversial area, this deals with how consultants conduct campaigns and what they say in political literature.

Back-Door Approach

Although the agency would not have the power to censor political ads or mailers, Stanford says his agency hopes its power to revoke consulting licenses would serve as a deterrent to campaign lies and misstatements. This back-door approach is necessary, he said, because the courts, citing First Amendment protection of political speech, are reluctant to rule on libel cases arising from political races.

“Because of this proposal, those professionals who engage in this business will clean up their own act,” Stanford said.

However, determining exactly what is fair in politics is not easy, counters San Diego consultant David Lewis.

Lewis gave as an example a candidate who uses a picture showing him shaking hands with a popular elected official. Even if the popular politician has refused to endorse the candidate, there is the implication of approval in the literature.

‘What Have They Done?’

“But what have they done that’s wrong?” asked Lewis, who currently is being sued for libel over a mailer he produced in a hotly contested San Diego County supervisor’s race. “Why shouldn’t you be able to show your associate with important people?”

The questions over consultant ethics are not new. In 1982, the Newport Beach consulting firm of Butcher-Forde (now called BFC Direct Marketing) stirred controversy when it sent out a political “hit piece” in a Los Angeles state Senate race implying that eventual winner Art Torres was living with a woman who was not his wife. In fact, he was married and living with his wife.

Also in 1982, the Fair Practices Commission explored allegations that the Berman and D’Agostino firm demanded money from candidates to be included in “slate mailings”--typically cards or letters promoting several candidates and issues together. Lacking authority over such matters, the agency tried without success to interest the Legislature in passing laws regulating the mailers. But the commission’s interest prompted the firm to make some wording and identification changes in its literature.

What resulted from the controversies was a voluntary commission code of ethics for candidates, but problems persist with a number of consultants. Several complaints about misleading political claims were filed with the agency during the 1984 election.

Letter Disguised

The item that recently drew the most complaints from voters, Stanford said, was a fund-raising letter sent out by Butcher-Forde on behalf of the Howard Jarvis initiative, Proposition 36. The solicitation came in a brown envelope printed with the words on front: “Property Tax 1984 Statement Enclosed. Do Not Destroy.”

The agency also received complaints about Berman and D’Agostino’s 1984 Democratic slate mailers, which were labeled “Democratic Voter Guides” and gave the appearance of being the official endorsement position of the Democratic Party, Stanford said.

At least two legislators say that they have been improperly included on the Berman and D’Agostino slate mailers. State Sen. Ruben Ayala (D-Chino), who was not running for reelection last year, said his name was used although he specifically told the firm and party leaders that he did not want his name included.

And State Sen. Robert Presley (D-Riverside) said he was misled by the same firm when it asked for permission to use his name on a slate mailer. He has complained that the consultants did not tell him about all of the items that would be included on the large post card sent to voters in his district.

Rent Control Issue

As a result, Presley said, he didn’t know his name would appear on cards targeted for Palm Desert voters that took a position on a rent control measure there. Only weeks before, he had told Palm Desert residents he would not take a stand on the controversial issue.

“That (the mailer) made it look like I didn’t know what I was doing or that I was lying, and neither was true,” Presley said.

Berman declined to comment on the mailers.