Article Examines When Legal Costs Can Be Covered By Campaign During Investigations In New Jersey

Analyzing the New Jersey Election Law Enforcement Commission (ELEC)'s recent advisory opinion on the matter, the Rutgers Journal of Law & Public Policy published an article on the use of campaign funds to pay legal fees for the purpose of responding to subpoenas in relation to non-criminal inquiries in New Jersey even where public financing caps have been reached.  The article also calls into question current structural challenges at ELEC.

Federal Election Commission Releases Post-McCutcheon Contribution Chart

In conformance with the U.S. Supreme Court's decision in McCutcheon v. Federal Election Commission, the Federal Election Commission (FEC) has released an updated federal campaign contribution chart reflecting the elimination of aggregated federal contribution limits.

Election Law Enforcement Commission Provides Comprehensive Analysis on IE Spending In New Jersey

Very informative white paper by New Jersey Election Law Enforcement Commission on Independent Expenditures, with nice focus on history of IE spending in New Jersey, which has accelerated in recent years.  The reasons are varied and will likely be the subject of much debate along with calls for new disclosure requirements.

A Must Read On Super PACs

This article is a must read for anyone interested in the origins of Super PACs.  The chief political correspondent for the NY Times magazine, who actually understands the origins of Super PACs, explains very well that Citizen's United is not what led to their creation. It was, in fact, McCain-Feingold's efforts to close the political parties' soft money accounts in 2002. So-called campaign finance reformers just don't get it. All they have done through their efforts is weakened the power of political parties while making it even more difficult to trace the flow of campaign cash.

Robertson v. Bartels Under the Microscope

At the end of the highly litigious legislative reapportionment fight of 2001, Federal District Court Judge Dickinson Debevoise determined under a strict scrutiny analysis that the New Jersey State Constitution's one year residency requirement for Assembly candidates violated the Equal Protection Clause of the U.S. Constitution. As reported by the New Jersey Law Journal last Friday, the New Jersey Supreme Court is now determining whether a State judge's decision annulling the election of Democrat Gabriela Mosquera's to the Fourth Legislative District may stand.

Other federal jurisdictions have ruled differently in recent years regarding residency restrictions depending on a number of factors, but generally upholding shorter restrictions while overruling more lengthy ones that were seemingly unjustified for lesser offices. For example, a Governor could be required to reside in a State for at least 10 years, but a state legislator in a state where they only represent a few thousand people could not be subject to a 10-year residency requirement as there is no rational basis for such a lengthy residency. In New Jersey, the Robertson v. Bartels decision has stood for a decade as the law of the land, in 2011 however, it was brought into question in the case of Olympian Carl Lewis where the Third Circuit, upholding a lower court decision, declined to apply a strict scrutiny analysis to the New Jersey Constitution's lengthier residency requirement for State Senators.

The instant case raises not only the question of whether New Jersey's residency requirement is constitutional, but the role of federal courts passing judgement on the State's constitution. The Mosquera case is made even more unique in that it was brought post-election, just days before Mosquera was to be sworn into office. The State argues that while it was bound by Judge Debevoise's decision in Bartels, which is why the Secretary of State certified Mosquera's placement on the ballot, it can now question the decision in State court. Should Mosquera lose before the New Jersey Supreme Court, it appears that this matter could end up being resolved in federal court.

How Should Surrogates Balance Need To Run for Office With Judicial Canons?

Many states elect judges who have to strike a tricky balance when running for office. Controversies often arise when elected judges accept contributions from parties who may regularly appear before them. In New Jersey, where all are judges are appointed (not that politics ever plays into that process), entanglements regarding balancing political engagement and serving on the bench seldom arise. The only judicial officers who must be elected are County Surrogates who act as judges in matters of probate, wills, estates, adoptions and incapacitated persons. In almost no easily contrived circumstance would politics ever interfere with or play into such matters, nonetheless, surrogates are bound by the Judiciary's rules.

As the New Jersey Law Journal reports, Atlantic County Surrogate Chris Brown has now responded to a formal complaint against him relating to his participation in a fundraiser for a legislative candidate. The Code of Judicial Conduct for Judiciary Employees is pretty clear that Surrogates and other judiciary employees cannot serve in leadership positions or as spokespersons for political organizations that support "partisan political activity." But does serving on paper as a member of a host committee of a political fundraiser for a friend to be on the same ballot column with you cross the line? That is essentially the question that now must be answered in this case in which there appear to be little or no clear precedents.

This all begs the question of whether a surrogate ruling on a will could really harm the perception of the independence of the judiciary while serving in the ceremonial position of the member of a host committee for a political fundraiser for another candidate on the ballot with them? If so, then how are Surrogates supposed to run for office on a political party's organization ticket, appear on the same yard sign, or the same political mailers as their running mates in their county?

I think the ACJC really needs to create some bright lines for Surrogates who face these tricky circumstances that will likely trigger future complaints in the heat of election season.

When Should Campaign Finance Violations Overturn The Result of Close Election and Who Does It, ELEC or the Court?

The New Jersey Election Law Enforcement (ELEC) today decided to intervene in an election contest in which a judge voided the outcome of a primary election due to what appears to have been an excessive and/or improperly reported campaign contribution in the amount of $16,000.

While this does not necessarily seem significant, for a Republican primary in sleepy Morris County, $16,000 is a lot of money. Plaintiffs in this case successfully argued that $16,000 represented such a large sum of the total amount of money spent in the election that it was enough to impact its outcome where the candidates were separated by only a handful of votes.

ELEC, however, appears to asserting its primal jurisdiction over such matters as it has done before. In Re the Contest of the Democratic Primary in 2003, 367 N.J. Super. 261 (App. Div. 2004). In this case the Appellate Division remanded an election contest to ELEC to "develop a record and utilize its expertise in interpreting the Act's provisions as to the claimed violations."

SEC Posts Pay To Play Staff Guidance Online

The staff of the Division of Investment Management at the Securities & Exchange Commission ("SEC") is now providing responses to questions posed in relation to its recently adopted pay to play Rule 206(4)-5 under the Investment Advisers Act of 1940. The last update was provided on April 28, 2011, so I would anticipate additional responses being provided in the near future.

Link Here: http://www.sec.gov/divisions/investment/pay-to-play-faq.htm

Reading Between The Lines: Redistricting In New Jersey

On November 18, 2010, the Eagleton Institute of Politics at Rutgers will be hosting a forum on legislative reapportionment and congressional redistricting where Ben Brickner, author of a new report on congressional and state legislative redistricting, will present a summary of his report entitled "Reading Between The Lines." Participating in the panel will be former longtime Executive Director of the New Jersey Senate Democratic Office, Kathy Crotty, Evelyn Liebman, Director of Organizing and Advocacy for New Jersey Citizen Action, and Brian M. Nelson, Esq., a former Executive Director of the New Jersey Republican State Committee. The purpose of the forum is to shed more light on the reapportionment and redistricting processes in the State of New Jersey and to explore what the new legislative and Congressional maps can, and can't, be expected to accomplish.

More Important Than Election Day

A timely Sunday Star-Leger story by Matt Friedman on the pending legislative reapportionment process in New Jersey. Matt covers Benjamin Brickner's excellent paper on the process in New Jersey and other states, which even if you do not agree with Ben's recommendations, is a worthwhile read. Matt's article also covers little known facts, such as what reapportionment costs the taxpayers, and mentions, as much as a straight news article can, the impact that the United States Supreme Court's Strickland decision may have on New Jersey's mapmaking process this time around.

Tweet Linked To Government Run Website Lands Sheriff In Hot Water

What is seemingly a matter of common sense--not to use government resources to promote political fundraisers--has become more complicated of an issue in the world of Internet-based social media networking.

The New Jersey Law Journal reports that an action brought by Bergen County Republican Sheriff candidate Michael Saudino, citing a violation of campaign finance laws prohibiting the use of public funds for political campaigns, has resulted in the entry of a consent order banning Bergen County Sheriff Leo McGuire from advertising for political fundraisers through a Tweeter feed on the Sheriff's official taxpayer-funded website.

According to the Sheriff's spokesperson, Sean Darcy, the entire incident was just an innocent mishap. Specifically, the New Jersey Law Journal reports that:

the series of events that led to the suit was set in motion when McGuire's campaign posted the information about the fund-raiser on his personal Facebook account. From there, according to Darcy, the sheriff's account on LinkedIn, another social networking site, "grabbed that entry." Subsequently, Darcy says, McGuire's Twitter account "grabbed" the information from his LinkedIn page. This movement of information among sites took place without the knowledge of the sheriff or his campaign staff, says Darcy.

The relevant provisions of the New Jersey Campaign Contributions and Expenditures Reporting Act provide that "[a] public agency shall not pay or make any contribution of money or other thing of value, whether out of public funds or any other funds which the public agency may control, to any candidate . . . and no such candidate or committee shall accept such contribution." N.J.S.A. 19:44A-11.9. Any willful or intentional violation of this provision can result in significant penalties under the Act. N.J.S.A. 19:44A-22.

In sum, keep this in mind next time you Tweet or link a government website to your facebook page.

Muni Judge Gets A Pass On Law Partner's Political Contributions from Business Account

The New Jersey Law Journal today reported that the New Jersey Supreme Court "found no clear and convincing evidence that Judge Philip Boggia knowingly violated Canon 7A(4) of the Code of Judicial Conduct, which bans political contributions by judges" when his law partner, unbeknownst to him, made a political contribution from their firm's business account. The Court warned that: "Faced with similar fact in the future, however, the rule we announce today would require a different outcome." Accordingly, lawyers at firms where part-time municipal court judges have law practices may make political contributions, but only from the donors' personal accounts. READ THE DECISION.

New Jersey Redistricting & Reapportionment Story

Tom Baldwin of Gannett penned an article this weekend relating to New Jersey Congressional districts maintaining that those in the central part of the state appear to be the most tortured. Ernest Reock, professor emeritus in the Center for Government Services at Rutgers also pointed out some population shifts that could make the legislative reapportionment process more interesting, as follows:

As for state legislative districts, Reock says districts in Essex, Union and Passaic counties, along with areas of Hudson and Mercer counties, have been slow to grow and the districts there may need to be expanded geographically in 2011.

The fastest-growing legislative districts, he said, are the 30th in Burlington, Mercer, Monmouth and Ocean counties; the 9th in Atlantic, Burlington and Ocean counties; the 23rd in northwest New Jersey; and the 2nd in Atlantic County.

These, he says, may require geographic downsizing with their newer, more dense populations.

Record Columnist Picks-Up On Different Legal Landscape As New Jersey Enters Reapportionment Process

In a Sunday column entitled, Redistricting the 800 lb. invisible gorilla, Bergen Record columnist Frank Hannon picks-up on the new legal landscape New Jersey's mapmakers are going to face this coming year that turns precedents followed during the last reapportionment process on their head.

Redistricting could have even greater consequences on the state level. Several complicated court cases, specifically Bartlett v. Strickland, McNeil v. Legislative Apportionment and others, may produce a more favorable map for New Jersey Republicans. Both parties will be vying to get a "good map." A "good map" is one that gives a particular party a better or at least a fighting chance of securing a majority in one or both houses. In 2001, Republicans got a "bad map."

The Interest Is Only A "Special Interest" When It Is Not Our Interest

In a frightening display, politickernj.com reports that New Jersey Senate Democrats plan to attempt to regulate certain 501c4 organizations that disagree with their political views, compelling not only the disclosure of contributors, but also applying pay-to-play rules to them.

Setting aside issues of federal preemption for the moment, Senate Democrat spokesperson Derek Roseman actually said that the proposed legislation would "clearly define the groups that were exempted" by "delineat[ing] between legitimate groups with a legitimate policy orientation and shadow organizations that are merely acting as a front for a political party." Further, Assemblyman and State Democratic Party Chairman John Wisniewski (D-Sayreville) said the application of such restrictions "would likely be based on the length of time the group had been in existence."

Does this mean that recently formed politically active 501c4's, such as Garden State Equality, which held events at which former Governor Corzine appeared at as an honored guest while advocating its agenda, and vice-versa, should be subject to such restrictions being sought to be imposed against Reform New Jersey Now by this legislation? Who decides?

While on the subject, why is the Legislature still avoiding real pay-to-play reform, such as that long-proposed by Assemblywoman Amy Handlin, which would entirely ban both corporate and union contributions in New Jersey? In throwing out the restrictions imposed on labor unions under Governor Christie's Executive Order No. 7, the Appellate Division held that while the Executive Branch could not do so unilaterally, the Legislature could act to apply pay-to-play restrictions to labor organizations that hold the largest no-bid public contracts in the State of New Jersey.

Symons: Population estimates suggest major redistricting looms

Michael Symons of Gannett reports on the Census Bureau's final population estimates for every municipality before this year’s official counts are released in early 2011 indicating that "some serious retooling of the legislative map is in store in advance of next year’s Senate and Assembly races." According to Symons' analysis of the numbers. . . .

Six districts have estimated populations that are too large, if the estimates prove correct, with another three districts are are pretty close. The six that would have to shed towns include the 2nd and 9th districts along the Shore, the 12th and 30th districts in Central Jersey, the 3rd District in rural South Jersey and the 23rd District in rural northwest New Jersey.

Another seven districts have estimated populations that are too small and would need to expand. These include the 27th, 29th and 34th districts in Essex County, the 31st, 32nd and 33rd districts in Hudson County and the 15th District in Mercer County.

New Jersey Legislative Reapportionment and Congressional Redistricting Primer

New Jersey's legislative and congressional districts will soon be redrawn by two separate independent commissions made up of members selected by leaders of the Republican and Democratic parties in the State.

First, by November 15, 2010, members State's Legislative Reapportionment Commission must be appointed by the respective chairs of the Republican and Democratic State Committees. This Commission must create a map by February 1, 2011, or within one month after the census data becomes available. This is the map that will govern the next round of legislative contests that partisan candidates must file to run in by April 2011.

Republicans will likely be seeking a more competitive map from what was adopted in 2001 that has resulted in Democratic pluralities in both houses of the Legislature for the last decade despite aggregate statewide election results favoring Republican candidates in recent years. Democrats will likely be seeking to maintain the status quo, but could face constitutional hurdles due to the March 2009 decision of the United States Supreme Court in Bartlett v. Strickland. This is very similar to questions raised in relation to New Jersey's current legislative map in 2001 regarding whether section 2 of the Voting Rights Act required the division of municipalities into more than two legislative districts contrary to the political boundary requirements of Article IV, Section 2, Paragraph 3 of the New Jersey Constitution. See: McNeil v. Legislative Apportionment Commission.

Second, with respect to Congressional redistricting, it is almost certain that when the results of the census are in, New Jersey will lose a congressional district for the first time in 30 years. We should know for sure by January 10, 2011 when Congressional seats are to be apportioned to the states. This should make for much more interesting mapmaking than the incumbency protection plan that was adopted in October 2001. Members of New Jersey's Congressional Redistricting Commission must be selected by respective legislative and state party leaders by June 15, 2011. The Commission must complete its work by January 17, 2012, which will govern where partisan candidates file to run for Congress by April 2012.

New Jersey Supreme Court Protects 100 Foot Zone At Polling Locations

The New Jersey Supreme Court today upheld and expanded upon the Attorney General's Exit Polling Directive, holding that: New Jersey’s election law statutes direct that voters will have a 100-foot free, unobstructed passage to polling places, without interference from any person, and this ban applies to all expressive activities within the 100-foot zone, including exit polling and handing out voting-rights cards. The election laws are constitutional because they are reasonable time, place, and manner restrictions under the First Amendment intended to secure and enhance another vital constitutional right—the right to vote.

Law Partner's Contribution Lands Municipal Judge In Hot Water

The New Jersey Law Journal reports that a municipal court judge has been recommended for public admonishment by the New Jersey Supreme Court's Advisory Committee on Judicial Conduct (ACJC) because his law partner, allegedly unbeknowst to him, made political contributions from their law firm's business account. The article provides that:

At issue are four donations made between May 27, 2004 and May 18, 2005, via check drawn on the business account of Durkin & Boggia of Ridgefield Park, where Boggia and Martin Durkin are the sole partners. Two $500 checks and one for $600 were made out to the Edgewater Democratic Campaign Fund, while another $600 went to the Bergen County Democratic Organization. * * * *

The ACJC charges Boggia violated Canon 7A(4) of the Code of Judicial Conduct, which bars political contribution by judges, Rule 2:15-8(a)(5), which prohibits judges from "engaging in partisan politics" and Rule 2:15-8(a)(6), which prohibits judicial conduct prejudicial to the administration of justice that beings the judicial office into disrepute.

* * * * While recognizing that Boggia, like most municipal judges, is part-time and also practices law, the ACJC said he is subject to the same absolute proscription from politics as a full-time judge. The committee disagreed that Durkin's First Amendment rights were implicated, saying Durkin was free to contribute, though not from the firm account, and whatever burdens that imposed on him were a "necessary consequence of a private law partnership with a part-time municipal court judge."

This case raises many interesting questions. Under most pay to play rules and ELEC regulations, partnership contributions are attributable to each partner, depending on the corporate form and ownership interests. Individual contributions by such partners could also implicate the firm if the individual partners have an equity stake. Seemingly here, the ACJC would allow a law partner of a judge to contribute from his own checking account, but not the firm's business account. Is there really any difference with respect to addressing the ACJC's concerns? After all, contributions reported from an individual partner's checking account will still be linked to the law firm's name via their requisite employer reporting information and Business Entity Annual Disclosure Statements if they do public work; therefore, creating the same perception of political engagement by the firm. While it would be uncommon, what if the judge was an employee or associate of the firm with no equity interest?

Better Late Then Never: State Treasurer Releases EO118 Redevelopment Entity List

As called for pursuant to Executive Order 118, the State Treasurer has finally provided guidance relating to applicable state redevelopment entities subject to pay to play restrictions. The following entities have been determined to meet definition of a "state redevelopment entity":

1) New Jersey Meadowlands Commission
2) New Jersey Redevelopment Authority
3) Capital City Redevelopment Corporation

The notice states that the list may be subject to future amendment. This notice, however, significantly limits the scope of E.O. 118 so as not to apply to redevelopment projects financed through certain agreements with the NJEDA, NJEIT, or other state entities.