It’s the week before election day and a candidate has evidence of campaign wrongdoing by her opponent. She takes her case to California’s Fair Political Practices Commission — but the agency is barred from even confirming the complaint exists. Voters are told nothing before casting their ballots.
That’s not how things work now. But it could become reality if an obscure state task force — being led by attorneys who work for political campaigns — considers an embrace of new limits on disclosure.
“There has to be a certain level of respect to due-process principles that, in some cases, may outweigh the need for transparency on certain issues,” Stephen Kaufman, a Democratic campaign attorney and the task force’s chairman, said at a meeting last month.
Changing the rules would require the full commission amending or doing away with its current regulations. Those rules allow a copy of most complaints to be handed out five days after everyone involved is notified. The state watchdog agency can also confirm when its own staff initiates an investigation.
The attorneys on the task force have insisted their concern is due process, ensuring the accused politician has a right to a full and fair investigation. They argue news coverage of accusations — before there’s any determination if any of it is true — makes that impossible.
“While we respect the press and their desire to know everything that’s going on, it’s not always the case that a complaint is valid or that it is important and that it ought to affect an election,” Tom Hiltachk, a Republican political attorney, said at last month’s meeting.
But a former FPPC chairman, Dan Schnur, thinks that’s giving politicians a veil of secrecy that doesn’t exist in civil or criminal court. “If someone is suspected of robbing a bank, their trial is a public matter,” he said. “They’re not convicted unless they’re found guilty beyond a reasonable doubt.”
Schnur not only supported the agency’s disclosure of complaints while in charge but also proactively posted the documents online. Political attorneys have long criticized all of the transparency efforts enshrined in FPPC rules over the past decade.
Organizations representing the news media are also expected to object to the rules being changed. And here’s one reason why: Candidates themselves routinely leak the existence of the investigations as a way to make a late hit on an opponent.
In fact, the attorneys on the task force even joked at last month’s meeting that they’ve done just that — a campaign tactic that relies, in part, on controlling the narrative. Without some kind of response — some context — from the actual agency that enforces campaign laws, the voters can easily assume the worst.
What happens next is unclear. The task force — almost one-third of which are either campaign attorneys or representatives of powerful interest groups — could make a series of recommendations next month to FPPC commissioners, the agency’s governing board. (One of the five positions remains vacant.) It will be up to them whether to change the policy.
One commissioner, Brian Hatch, said at a meeting last month that perhaps late-breaking campaign investigations should be “sequestered” from public view until after an election. Alice Germond, the current FPPC chair, said she was worried about “over-muzzling” the agency’s staff in explaining the investigation process.
Schnur said there’s always the potential for formal complaints to be used as fodder in a close contest, the same way unproven criminal charges can follow a person if publicized. “But the system believes the alternative of conducting these proceedings in absolute secrecy is even worse,” he said.