Campaign activity by the Wichita Downtown Development Corporation appears to be contrary to several opinions issued by Kansas Attorneys General regarding the use of public funds in elections.
At issue is a page at WDDC’s website at downtownwichita.org. The page encourages Wichitans to vote yes in the special February 28th city election regarding a guest tax rebate program for the Ambassador Hotel.
Besides encouraging a yes vote, the page holds a link to the campaign website that supports the “Vote Yes” side. The page also holds a link to that campaign’s television commercial on YouTube.
While the WDDC presents itself as a non-profit organization that is independent of the City of Wichita, it receives at least 95 percent of its revenue from city property taxes, according to its most recent IRS Form 990. While it appears Kansas has no statutes or court cases prohibiting the use of public funds for electioneering, there are at least two Kansas Attorney General opinions on this topic.
One, opinion 93-125, states in its synopsis: “The public purpose doctrine does not encompass the use of public funds to promote or advocate a governing body’s position on a matter which is before the electorate. However, public funds may be expended to educate and inform regarding issues to be voted upon by the electorate.”
The “governing body” in this case would be the Wichita City Council, which voted to pass the guest tax measure that is the subject of the election. The expenditure of public funds is through the WDDC.
While in the past some governing bodies have spent taxpayer funds to present information about ballot measures, this is not the case with the WDDC. It is explicitly campaigning in favor of the issue.
A more recent Kansas Attorney General opinion, 2001-13, holds this language: “While the Kansas appellate courts have not directly addressed the issue of whether public funds can be used to promote a position during an election, there are a number of cases from other jurisdictions that conclude that a public entity cannot do so.”
The opinion cites a court case: “Underlying this uniform judicial reluctance to sanction the use of public funds for election campaigns rests an implicit recognition that such expenditures raise potentially serious constitutional questions. A fundamental precept of this nation’s democratic electoral process is that the government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions.”
The opinion reaffirms 93-125, stating: “In Attorney General Opinion No. 93-125, Attorney General Robert T. Stephan concluded that public funds may not be used to promote or advocate a city governing body’s position on a matter that is before the electorate.”
Bob Weeks, who is chair of a campaign group taking the “Vote No” side in the February 28th election, has asked WDDC to remove the campaign material. In the alternative, he has asked that the “Vote No” campaign be allowed to add material and links to the page.
Weeks also said that he suspects WDDC will contend that it is not spending public funds to campaign in favor of the “Vote Yes” side, despite the fact that over 95 percent of its revenue is derived from public taxation.
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