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In NJ, Large Campaign Contributors Have a Conflicted Relationship
Sunday, May 29th, 2011
Robert Wechsler
Good news: Westminster is not alone. No, I am not referring to
the British Parliament or the New York dog show. I am referring to the
Westminster, CO law that says that a campaign contributor has a relationship with the recipient of a sizeable campaign contribution
that gives rise to a conflict of interest and requires the recipient's withdrawal from participation
in any matter involving the contributor (see my blog post on what I
call the Westminster Approach).
It has been pointed out to me that New Jersey has a similar rule. In fact, it is not a law, but a rule of the state ethics commission, and it only applies to state officials. §19:61-7.4(c) states that:
The Westminster-Jersey approach does not stand in the way of the First Amendment, at least if you don't subscribe to the idea that it was meant to protect officials' right to appear corrupt when they vote. This approach allows citizens, even corporations, to give whatever they want to whomever they want, they just can't have their cake and eat it, too (that expression, in its correct, reverse form, long predates our founding fathers, but I'm sure they embraced it).
How It Works
How does this rule work? When a matter comes before an elected official that might benefit, directly or indirectly, an individual or entity that recently gave that official one or more sizeable campaign contributions, then the elected official must withdraw from participation in that matter.
If the official does not recognize or disclose the conflict, anyone can point out that the official received the contribution(s) and, if the official refuses to withdraw, a complaint could be filed (a complaint could even be filed without first pointing this out, but an official might argue that he was not aware of the contribution(s)). In a board situation, the other board members could vote that the official withdraw; in other situations, a supervisor could require withdrawal.
Limitations of This Approach
The approach does have its limitations. For example, there would be no conflict if a contribution were made to the official the day after the vote.
In addition, an individual or entity that knows it will have business before a council could give large contributions to all council members, if they run at the same time, and then, according to the Rule of Necessity, they all would be able to vote. Or contributions could be made to enough candidates that oppose a contract or project, so that the contract or project goes through.
In other words, like almost any government ethics law, this one too can be gamed. But I think it would backfire on the contractor, developer, or whatever when the ruse came out. And it would be hard to hide. So although it seems like a serious loophole, one use of it would probably create a scandal and make it hard for anyone else to try.
Seek Advice
There's another rule in §19:61-7.4 that I was happy to see:
Robert Wechsler
Director of Research-Retired, City Ethics
---
It has been pointed out to me that New Jersey has a similar rule. In fact, it is not a law, but a rule of the state ethics commission, and it only applies to state officials. §19:61-7.4(c) states that:
-
A State official is required to recuse himself or herself from an
official
matter that involves any individual, association, corporation or other
entity
from which the State official received a campaign contribution,
individually or
in the aggregate, in an amount required to be reported by N.J.A.C.
19:25-10 [that is, $300].
Recusal is required regardless of whether the State official is elected
to the
office or position associated with the campaign contribution. The
recusal shall
remain in effect until the expiration of the term of office which the
State
official was seeking when the contribution was made.
The Westminster-Jersey approach does not stand in the way of the First Amendment, at least if you don't subscribe to the idea that it was meant to protect officials' right to appear corrupt when they vote. This approach allows citizens, even corporations, to give whatever they want to whomever they want, they just can't have their cake and eat it, too (that expression, in its correct, reverse form, long predates our founding fathers, but I'm sure they embraced it).
How It Works
How does this rule work? When a matter comes before an elected official that might benefit, directly or indirectly, an individual or entity that recently gave that official one or more sizeable campaign contributions, then the elected official must withdraw from participation in that matter.
If the official does not recognize or disclose the conflict, anyone can point out that the official received the contribution(s) and, if the official refuses to withdraw, a complaint could be filed (a complaint could even be filed without first pointing this out, but an official might argue that he was not aware of the contribution(s)). In a board situation, the other board members could vote that the official withdraw; in other situations, a supervisor could require withdrawal.
Limitations of This Approach
The approach does have its limitations. For example, there would be no conflict if a contribution were made to the official the day after the vote.
In addition, an individual or entity that knows it will have business before a council could give large contributions to all council members, if they run at the same time, and then, according to the Rule of Necessity, they all would be able to vote. Or contributions could be made to enough candidates that oppose a contract or project, so that the contract or project goes through.
In other words, like almost any government ethics law, this one too can be gamed. But I think it would backfire on the contractor, developer, or whatever when the ruse came out. And it would be hard to hide. So although it seems like a serious loophole, one use of it would probably create a scandal and make it hard for anyone else to try.
Seek Advice
There's another rule in §19:61-7.4 that I was happy to see:
-
An
incompatible financial or personal interest may exist in other
situations which are not clearly within the provisions of (d) and (e)
above,
depending on the totality of the circumstances. A State official should
contact
his or her agency ethics liaison officer or the Commission for guidance
in such
cases.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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