Government Use of Public Assets to
Sway the Vote
 

"The governmental view would most always prevail if its overwhelming financial resources could be used to support issues that are in the domain of the electorate.  To hold otherwise would allow State government to monopolize the market place of ideas and to smother opposing opinions."  Justice J.G. Conor - New York Supreme Court, Albany County

The following court opinions are applicable to the issue of government use of taxpayer assets to sway the outcome of elections. The cases have been identified and  excerpted for brevity. If you wish to read the entire case, you may use the  information provided for each case to search for them individually within  the New York Unified Court System, LEXIS, Westlaw or one of the other law repositories as appropriate..

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In the Matter of Robert L. Schulz et al., Petitioners, v. State of New York et al., Respondents. Index No. 5832-90 Calendar No. 13; Supreme Court of New York, Albany County. 148 Misc. 2d 677; 561 N.Y.S.2d 377; 1990 N.Y. Misc. LEXIS 516; October 12, 1990. Justice John G. Connor wrote the opinion.

Procedural Posture: Petitioner citizens sought to enjoin respondents, the Governor of the State of New York, the Commissioner of the Department of Environmental Conservation, and all those within their direction or control, from engaging in any activity to promote the passage of the Environmental Quality Bond Act (Bond Act) at a November 6, 1990 general election.

 Disposition: The relief sought by the petition shall be granted to the extent that respondents shall be preliminarily enjoined from further expenditure of State funds to promote the Bond Act, including the distribution of the pamphlet entitled "Proposal One * * * To Protect New York's Environment For Future Generations" and any other material containing the slogan "Keep New York Clean and Green". In all other respects, the relief requested in the petition shall be denied and same shall be dismissed.

Excerpted Court Opinion: "A review of the pamphlet entitled, "Proposal One * * * To Protect New York's Environment For Future Generations" leads inexorably to the conclusion that it has crossed the line between education of the public and an attempt to persuade the electorate to approve the Bond Act. Specifically, the slogan "Keep New York Clean and Green" , conveys the message that the Bond Act should be approved.  Similarly, the message from the Governor which concludes, "It is the ultimate selfless act" seeks approval of the Bond Act.  Respondents concede that materials which state "Vote Yes" or "Vote No" would be prohibited.  They suggest that such an explicit statement is the only one that should be deemed to cross the line.  However, such an approach is grossly simplistic and fails to recognize implicit, indirect persuasion which can influence a voter in the same way that an explicit message can.  While the line between informing the public and influencing the public may often be a vague one, respondents' material in this case does not fall in the ambiguous gray area.

Rather, the words, "Keep New York Clean and Green" and "It is the ultimate selfless act" are clearly intended to influence the voter rather than inform.  Informative words convey facts, statistics and objective data.  Respondents' words do not convey information but are pure Madison Avenue slogans intended to promote the Bond Act and entice the voter to cast a "Yes" vote on the November ballot.  State funds cannot be used for this purpose. The governmental view would most always prevail if its overwhelming financial resources could be used to support issues that are in the domain of the electorate.  To hold otherwise would allow State government to monopolize the market place of ideas and to smother opposing opinions.

...Respondents have the responsibility to inform and educate the people and not to lead them by the nose into the voting booth. Editors Note: The petitioners also requested that respondents be enjoined from issuing any public statements on the Bond Act.  The court could find no legal authority for granting that request as public officials have the right of free speech and a responsibility to express their views on any issue which affects the electorate they serve.

 

bullet In the Matter of Robert L. Schulz, Appellant,  v. H. Carl McCall, as Comptroller, et al, Respondents - 75026 - Supreme Court of New York, Appellate Division, Third Department. 220 A.D. 2d  984; 632 N.Y.S.2d 883; 1995 N.Y. App. Div. LEXIS 10729; October 31, 1995.

Procedural Posture: Petitioner appealed from a judgment of the Supreme Court, Albany County (New York), which dismissed the complaint in which petitioner alleged that respondents, a senator and the comptroller, violated N.Y. Const. art. VII, § 8 by utilizing public funds to advocate a partisan position.

 Disposition: Reversed in part: The Court reversed that part of the judgment that dismissed action in which petitioner alleged that the comptroller article was not a proper attempt to educate the public.

Excerpted Court Opinion: "[W]e...take a different view [from the lower Court] of the allegations concerning the Comptroller.  The factual averments that the Comptroller's article [promoting a New York State Constitution amendment] "Debt Reform Amendment: A Good First Step Toward Fiscal Responsibility" was prepared or reproduced on official letterhead and transmitted to newspapers throughout the State on a State fax machine competently allege the use of public funds. [emphasis added] Further, we agree with petitioner that, rather than merely "conveying information on a political issue and urging voters to participate in the democratic process" the Comptroller's article was  " ' patently designed to exhort the electorate to [make an avowed, public commitment] in support of a particular position advocated by [one political faction]' .[emphasis added] The article states in relevant part:

"Critics of the proposed amendment have said it fails to go far enough.  I agree.  The amendment does not go as far as the one I proposed early last year.  However, the Legislature was reluctant to impose any restrictions on itself at all.  They prefer the status quo.  The amendment we finally forced them to accept is a major step toward reform, but not the final step.  We can continue to move forward.  However, rejecting this amendment will send a message to the Legislature that the voters are satisfied with current spending practices - -  and I know that is certainly not true.

"This amendment is not a panacea for all that ails the State.  We still need to take additional steps...But if the amendment does not pass this fall, it will be at least two more years before another amendment an be put on the ballot -- if the Legislature chooses to give the voters another change at reform -- and there are no guarantees it will be better than this one.

"New Yorkers should not have to wait any longer for reform -- we have waited long enough.  The Constitutional amendment that will appear on the ballot November 7 will put in motion reforms that will begin to finally get New York's finances in order.  We must not pass up this change to fix the out of control debt practices that have been dragging New York down."

Thus, the petition/complaint state a valid cause of action under NY Constitution, article VII, § 8 (1) to the extent that it alleges the Comptroller's dissemination at public expense of the article... [Emphasis Added] 
Judges: Mercure, J.P., White, Casey, Peters and Spain, JJ., concur.

 

bullet January 30, 1997: In a follow up action in which the Comptroller "moved for summary judgment dismissing the petition/complain against him, The Supreme Court of New York, Appellate Division, Third Department held the following: "We agree with Supreme Court's conclusion that respondent's evidentiary submissions by no means mandated a finding that he did not violate NY Constitution, article VII, § 8 (1) because his dissemination of public funds was merely accomplished in furtherance of a civic responsibility to speak on matters of public concern.  Rather, as clearly expressed in our prior decision, our reading of the subject article leads us to the conclusion that the expenditure was incurred as the result of an affirmative effort on respondent's part to influence the election. Thus, we are not persuaded by respondent's efforts to distinguish the present situation from the facts underlying Matter of Phillips v Maurer and Matter of Schulz v State of New York...

Ordered that the order is affirmed, with costs. [emphasis added]

Judges: Cardona, P.J., Mikoll, Crew III, and Yesawich Jr., JJ., concur.

Opinion by Mercure.