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.<br>
<br>
This process-substance distinction is rarely made, at least
publicly. But according to <a href="http://yaledailynews.com/blog/2013/04/01/campaign-pledge-sparks-debate/…; target="”_blank”">an
article in yesterday's Yale <i>Daily News</i></a>, 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.”<br>
<br>
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.<br>
<br>
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.”<br>
<br>
<b>An Obligation to Participate</b><br>
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).<br>
<br>
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.<br>
<br>
<b>Minimum Requirements</b><br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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