Local Campaign Finance Laws Are Also Minimum Requirements

Government ethics is a process issue. Process issues appeal more to, and are better understood by, lawyers. Although corruption may be seen as a substance issue, the ways to prevent it are considered procedural. So at election time, most candidates choose not to talk about ethics reform, at least in any detail. When they raise the issue, it is usually to portray themselves as clean and ethical, and sometimes to portray others as corrupt.

This process-substance distinction is rarely made, at least publicly. But according to an article in yesterday's Yale Daily News, it was made yesterday by a New Haven mayoral candidate (a lawyer, of course), who said, “I’m not going to focus on these process questions. I plan on focusing on reducing crime, improving our schools, creating youth centers for our kids and creating jobs.”

This was said in response to another candidate's request that all candidates pledge to participate in the city's public campaign financing program (which I administered until last July), among other things.

The campaign manager for the candidate calling for the pledge responded, “This is not a process issue — it’s a governance issue. If you have contractors spending $1,000 a pop to buy the mayor, that guy won’t represent the average New Haven resident. Who signs onto the Democracy Fund is an indication of who will be supportive of the popular will of the people.”

An Obligation to Participate
Here is my description of the governance issue. New Haven has set up a unique public campaign financing program which cannot work well unless those who want to run New Haven participate in it. The refusal of a major candidate to participate in the program puts the rights of the candidate ahead of the obligation of someone who wants to run a community to respect what the representatives of the community have done to prevent the appearance of impropriety in the city. The current (and longtime) mayor did the same thing in the last election (he is not running in this one).

Just because the constitution, as interpreted by the Supreme Court, does not allow a local government to require participation in the campaign financing program does not mean that it's not a prospective mayor's obligation to participate, even if it means possibly losing the election. There will be many, many situations where the mayor should do what he feels may not be best for him or his associates, but which is best for the community.

Minimum Requirements
This is also a government ethics issue. Ethics laws, including campaign finance laws, are minimum requirements. That means that when you find a loophole in them (in this case, the interpretation of the First Amendment) it is not appropriate to take advantage of it to your personal benefit.

Campaigns are not games or battles. They are the way people obtain the public's consent to govern them, and the way they become fiduciaries with duties to the public, duties that are the basis for government ethics rules. Therefore, the rules for candidates are no different than the rules for what candidates become when they win. The rules provide the minimum that is required of officials and candidates. They should do more than is required, and the law is not an excuse to do no more.

The mayoral candidate has another excuse, other than that the law does not require him to participate. His other excuse for not participating in the campaign financing program is that he entered the race too late. Not only is this not true, but since the rules have been there for years, his personal decision to wait until two candidates had participated, and could not back out, should not excuse him in any way from participating. In fact, considering the circumstances, waiting to announce his candidacy could be seen as a strategic move that takes advantage of ethics rules that are not meant to be taken advantage of.

I consider the candidate's refusal to participate, especially for the reason he states, to be an act of ethical misconduct, a violation of the spirit and purposes of the Democracy Fund Ordinance. Of course, this violation cannot be enforced, but this is only because of the way the Supreme Court has interpreted the First Amendment in terms of political candidates.

Oh, but that's a procedural issue. And so is New Haven's lousy conflicts of interest program. One certainly cannot expect this candidate to tie his hands any further by making the program better, should he be elected.

Robert Wechsler
Director of Research-Retired, City Ethics

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