Benicia Considers Proposal for City Hall to Fact-Check Political Ads During Elections

Benicia lawmakers are considering a proposal that could eventually require the city to fact-check political campaign advertisements — a novel response to alleged election misinformation that could face legal scrutiny.

The ordinance comes after a political action committee funded by Valero, the oil giant that runs a refinery in town, tried to influence voters in the last two city council elections. The company's involvement in city politics also came as the Valero plant experienced two of the region's worst refinery accidents in the last four years.

The ordinance was co-authored by Mayor Steve Young, whom the Valero PAC opposed in the last election. He said the committee put out ads that manipulated photos of him and distorted his record.

Now, Young said, the city should consider whether its campaign regulations "can be amended to prohibit digital or voice manipulation of images and whether any lying can be prohibited."

The PAC, dubbed Working Families for a Strong Benicia, raised hundreds of thousands of dollars for the 2018 and 2020 city council elections. Both votes revived debate between some city officials and environmentalists on one side, who want more regulations on the refinery, and oil executives and unionized refinery workers on the other, who say they fear the city's real motivation is to shut the plant down.

In 2018, two candidates backed by the PAC, which is also funded by several labor organizations allied with the refinery, won seats on the Benicia City Council. Another candidate, an environmentalist who was opposed by the committee, lost.

Last year, Young won the mayor's race despite the PAC's opposition to his candidacy. The ads said that he was against affordable housing and that he didn't need a job because he receives a pension from previous local government work.

The mayor said he does want cheaper housing and there's nothing wrong with receiving a pension. He said Valero's opposition to him began in 2016, when the Benicia Planning Commission, which Young was a member of, voted to reject the company's crude-by-rail proposal.

"Steve Young wants to turn Benicia into a place where young families can't afford to live and work," one flier stated. "Who would vote against kids playing at the ballpark? Steve Young did," another one said.

Young and the proposal's co-author, Councilmember Tom Campbell, said the ads mean the city should do a better job of making sure future elections are fair and honest.

But turning the government into a fact-checking body would be ripe for a legal challenge, according to Jessica Levinson, a Loyola Marymount University professor specializing in election law.

"We know the First Amendment does in fact protect lies," Levinson said in an interview. "I think this is absolutely open to a legal challenge the second they pass it, if they do."

"Who decides what's an embellishment, what's misleading, what's just an omission versus what's actually a lie?" Levinson asked.

Since the 2016 election and the beginning of Donald Trump's presidency, misinformation has become one of the biggest issues in American politics, said Levinson.

"We are tackling a situation where there are more lies and there's more technology that allows us to lie than for sure the framers every dreamed of," she added.

At the same time, the local news industry, which traditionally acts like a fact-checking body, has been decimated. Benicia gets some news coverage but is often overshadowed by larger Bay Area cities like San Francisco and Oakland.

"One of the things that keeps me up at night is not just misinformation and disinformation and the fact that people believe it, but the fact that we have a dwindling press corps and particularly in smaller jurisdictions," Levinson said.

The details over how the city would fact-check political ads has yet to be worked out. The proposal, set to go before the city council on Tuesday, would forward the issue to Benicia's Open Government Commission, a body that would consider changing the city's election campaign regulations. The commission would work on new rules and forward them to the city council next April.

Valero fought with the city's last mayor, Elizabeth Patterson, after she called for more regulations to be placed on the refinery following a May 2017 power outage that led to a major release of toxic sulfur dioxide and prompted emergency shelter-in-place orders. Less than two years later, the plant had a series of malfunctions that led to another significant pollution release.

Jason Kaune, the PAC's treasurer and head of political law at Nielsen Merksamer, a Sacramento-based lobbying firm, declined to comment. Representatives for Valero and unions that supported the committee did not respond to requests for comment.