Anita Chabria: Behested payments aren't illegal, but they are a problem. Especially for Newsom

After Gov. Gavin Newsom announced that the U.S. Department of Justice may be investigating his wife, Jennifer Siebel Newsom, media and pundits pounced on millions in charity payments he has solicited for nonprofits, including ones she is involved in.

Those donations, known as "behested payments," aren't illegal in California, but, long before Newsom started asking for them, many have found them unsavory — with good cause. A behest, after all, is by definition a command or at least a strong suggestion.

Anytime a politician is commanding money, regardless of the purpose, there is at least the appearance that the giver — Meta, Google, Blue Shield for example — may expect something in return.

It may seem absurd that the Trump administration could be investigating Newsom for questionable ethics, when Trump has hawked everything from crypto-coins to sneakers from the Oval Office. But the problem Newsom now faces is that behested payments are actually skeevy, and legal or not, they make an excellent target for pummeling the presidential contender. Especially because some of the charities are tied to his wife.

"The Newsom case has blown it wide open, but this has been an issue for years," Sean McMorris told me. He's the transparency, ethics and accountability program manager at Common Cause, a nonpartisan organization that has been raising alarms over behested payments for more than a decade.

McMorris said that while these payments don't violate any laws, they are "ripe for abuse" because companies and people likely aren't ponying up cash just to be good citizens. If you or I called up PG&E and asked them to give a few million to our favorite cause, I doubt we'd have much luck, even if it involved kittens, puppies or small children in need.

The entire system, McMorris points out, "doesn't really work unless you're shaking down people who you know need things from you as a politician."

Jerry Brown used behested payments to get millions for charter schools he supported. Lesser luminaries such as mayors (including Antonio Villaraigosa, Eric Garcetti and Karen Bass, just to name the last three in L.A.) have used them for all kinds of stuff from jobs programs to fixing up official residences.

And it's far from a Democratic thing. Arnold Schwarzenegger, a Republican, used them to pay for travel and after-school programs. Republican James Gallagher, who recently won a congressional seat, used them to fund computers for schools while he was in the state Legislature. Senate Minority Leader Brian Jones has raised millions, including helping to get $800,000 in donations to fund a replica of a historic ship for the maritime museum in his San Diego district.

Trump himself could be considered king of behested payments, with his corporate-paid ballroom and birthday bash.

Literally, folks, find me a politician with an itty-bitty bit of clout, and I'll show you a trail of behested payments stretching through their pet projects. For that reason alone, it's unlikely that California legislators will take any action to curb them, especially now when doing so would appear as a criticism to Newsom and Democrats in general.

And, to be fair, behested payments can do a lot of good. Newsom supercharged behested payments during the pandemic, raising hundreds of millions for programs to get Californians through that social disaster.

For that reason and others, not all experts find them terribly troubling. Jessica Levinson, a Loyola Law School professor with an expertise in election and governance issues, points out that money in politics is nothing new and at least behested payments are (mostly) required to be acknowledged. Anything over $5,000 and the politician has to report it to the California Fair Political Practices Commission, which keeps a public database.

That makes behested payments far more transparent than, say, dark money donations to a mysterious political action committee. And at least the money is going to a good cause, be it historical ships or computers for kids.

"I actually don't think that they're the evil mechanism that other people do," Levinson said. "I mean, my feeling is like, let's live in reality, right? People are going to want to give as much money to or close to powerful people as possible, and I think that we have a choice between money going to independent expenditure groups or political committees or going to nonprofits."

So behested payments in and of themselves might not be much of a headache for Newsom. But some of the payments Newsom solicited went to nonprofits Siebel Newsom is involved with, and which have paid her a salary (she takes pay from The Representation Project, but does not draw a salary from the other nonprofit she is involved with, the California Partners Project). That proximity is uncomfortable for many of us. There is no distinction for a behest given to a charity with direct ties to the politician, but maybe there should be.

Still, salaries being paid by behested payments also aren't illegal, and it's been done before, even by Newsom. Villaraigosa was paid through behested funds for his work as the state "infrastructure czar" back in 2022. Bass considered paying former L.A. Police Commissioner Steve Soboroff through behested-funded nonprofits for his work after the recent fires before public scrutiny pushed him to forgo the funds.

None of that is to say the Newsoms are off the hook in a federal investigation. Newsom's office said that along with the FBI, agents from the IRS have been knocking on doors and asking questions. All of us — probably the Newsoms included — will just have to wait to see if the fine-tooth combs of the feds pick up any dirt.

If there is any lesson to be learned at this point, it's about ambition and hubris. Behested payments are easy money for California politicians and business as usual — everyone does it. But maybe they shouldn't. It's not black or white.

Newsom is learning quickly what it means to have a powerful enemy like Trump, one who has shown he will use the full power of the American government for his own purposes. One who can tip the scales and slide white to gray and gray to felony.

Federal investigators do not like to come up empty-handed, and the wink-wink nature of behested payments creates just that kind of ambiguity that provides reasonable cause for investigation — a self-inflicted vulnerability that surely has every California politician nervous.