Suit Against Contractor Contribution Ban in Albuquerque
According to <a href="http://www.nmtelegram.com/2013/05/07/berry-donors-sue-clerk-over-contri…; target="”_blank”">a
New Mexico <i>Telegram</i> article</a>, four Albuquerque contractors sued
the city's ethics board, claiming that a 2007 charter provision banning
contributions from contractors violates
their free speech rights.<br>
<br>
Here's a link to <a href="https://docs.google.com/file/d/0B87wBpoonZ12MGxDSWFyV1VORFU/edit" target="”_blank”">the
contractors' complaint</a>. And here is the provision they are
suing on:<blockquote>
Charter XIII(4)(f) <i>Ban on Contributions from
Business Entities and City Contractors.</i> No candidate shall
accept a contribution in support of the candidate's campaign from
any corporation, limited liability company, firm, partnership, joint
stock company or similar business entity or any agent making a
contribution on behalf of such a business entity. No candidate shall
accept a contribution in support of the candidate's campaign from
any person, other than a City employee, who at the time of the
contribution is in a contractual relationship with the City to
provide goods or services to the City. The remedy for an unknowing
violation of this subsection shall be the return of the
contribution.</blockquote>
The reason the contractors sued the ethics board (and the clerk, who
oversees it) is that another mayoral candidate, who is participating
in the city's public campaign financing program, had filed a complaint
against the contractors' candidate (the incumbent), who had accepted the
contractors' contributions and is not participating in the public
campaign financing program.<br>
<br>
According to <a href="http://www.abqjournal.com/main/212381/news/abq-news/court-asked-to-halt…; target="”_blank”">an
article in the Albuquerque <i>Journal</i></a>, the contractors' request
for a restraining order was denied by a federal judge. And according
to <a href="http://www.abqjournal.com/main/215416/news/abq-news/ethics-board-allows…; target="”_blank”">another
<i>Journal</i> article</a>, the ethics board narrowly accepted the
complaint and scheduled it for hearing.<br>
<br>
The contractors make one good point in their suit, that the
contribution ban is limited to contractors (and corporations). That is, it does not
include others who seek special benefits from the city government,
such as grantees, permittees, lobbyists, associations, and unions
(this isn't, however, how the contractors phrased this issue).<br>
<br>
It is typical for contribution bans to apply only to contractors. That's who people think of when they think of pay to play.
But it would be best to include any individuals and entities who can
become involved in pay to play, and to make it clear that one of the
principal reasons for the ban is to protect them from pay-to-play
demands. No response works better than "I can't."<br>
<br>
In fact, since the complaint was filed against the incumbent mayor,
it could be argued that the suit itself is an example of pay to
play. The contractors might have felt obliged to file the suit, and
there is certainly an appearance that this is so. The suit is one big campaign
contribution.<br>
<br>
According to <a href="http://www.nmtelegram.com/2013/06/25/federal-judge-rejects-berry-donors…; target="”_blank”">another
<i>Telegram</i> article</a>, the council member who drafted the
contribution ban rightly argues that the suit should have been filed
before the election. It's been six years since the ban was passed.
Complaining about it now makes it look like an attempt to change the rules in
the midst of an election, and to harm candidates participating in
the city's public financing program. To me, this sounds more serious than a few contractors' right to spend money as they choose.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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