Dennis Galvin, a member of the Legal Task Force of the 'Citizen's Campaign,' penned a column in this week's New Jersey Lawyer in response to critics of New Jersey's ever growing patchwork of local pay-to-play ordinances.
The column is seemingly in response to the assertion by plaintiffs in the recent Earle Asphalt appeal that New Jersey's pay-to-play laws are unconstitutional. Earle Asphalt, however, unsuccessfully challenged the constitutionality of the state-level contracting provision under P.L. 2005, c. 51 that prohibits contributions by state contractors to county political organizations, gubernatorial candidates and state political party committees, but not the constitutionality of local pay-to-play ordinances authorized by state law under P.L. 2005, c. 271.
While all the focus has been on the interesting constitutional questions surrounding such restrictions, there is seemingly a lack of focus on other arguments that don't seem to have been addressed in the Earle Asphalt appeal: (1) an equal protection argument relating to how the law been applied by the State Treasurer; and (2) whether federal transportation funds were included within the paving contract in question that would prohibit the application of the state pay-to-play law under the 2005 decision State of New Jersey v Mineta, Civil No. 05-228 (D.N.J. 2005), holding that Executive Order 134 (now codified at P.L. 2005, c.51) unduly restricts the potential bidding pool for federally funded state highway projects in violation of 23 U.S.C. §112.
Additionally, some local pay-to-play ordinances have recently been held unconstitutional. In Monroe Township in Middlesex County, for example, a trial court held that the Township's pay-to-play ordinance was unconstitutional on a number of grounds in that it was not narrowly-tailored under a strict scrutiny analysis.
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