New Jersey Supreme Court To Consider Constitutionality of Pay-To-Play Restrictions

As first reported by politickernj.com columnist Wally Edge, on November 5, 2008, the New Jersey Supreme Court will hear oral arguments in the appeal of IMO the Appeal by Earle Asphalt Co. in which the Appellate Division upheld 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.

In this case, Earle was stripped of a state paving contract as the result of a contribution that the company's president had made to the Monmouth County Republican Organization. When realizing that the contribution could result in the company's debarment, a refund was sought, but received outside of the 30 day safe harbor provision.

As of November 15, 2008, this decision will have even more significance as this restriction has recently been expanded to apply to Legislative Leadership and Municipal Party Committees pursuant to Governor Corzine's Executive Order No. 117.

The Appellate Division did not specifically render a holding on the constitutionality of local pay-to-play ordinances authorized by state law under P.L. 2005, c. 271. Arguably, however, the same rationale could be applied. And a Middlesex County trial court has thrown out a local ordinance, holding that it was unconstitutional on a number of grounds, including that it was not narrowly-tailored under a strict scrutiny analysis. This particular ordinance, however, was very far reaching.

The Rules Are Set For 2009

On Tuesday, October 21, 2008, ELEC voted to adopt the proposed amendments to implement inflationary campaign cost adjustments for all candidates and committees. The proposal was adopted as it appeared in the New Jersey Register on August 18‚ 2008:

For Gubernatorial Candidates: http://www.elec.state.nj.us/pdffiles/regulations/oal_prop_gub_071708.pdf

For All Others:
http://www.elec.state.nj.us/pdffiles/regulations/oal_prop_nongub_071708.pdf

At its September 30, 2008 meeting, ELEC voted to adopt some minor amendments to the Gubernatorial public financing program:
http://www.elec.state.nj.us/pdffiles/regulations/oal_adopt_10032008.pdf

ELEC Hearing On Contribution Limits and Adoption of Public Financing Rules for 2009 Gubentorial Campaign

On September 30, 2008, the New Jersey Election Law Enforcement Commission has provided notice that it will be holding a public hearing concerning proposed amendments to the spending limits and thresholds applicable to gubernatorial candidates, and thresholds applicable to non-gubernatorial candidates and committees. ELEC will also consider the adoption of new rules and amendments governing the gubernatorial public financing program and on the wrapping up of publicly-financed gubernatorial campaigns with outstanding liabilities.

Preliminary Analysis of Corzine's Executive Orders and Legislative Proposals To Restrict Wheeling and Pay To Play

After approximately 140 public corruption convictions by United States Attorney Chris Christie, Governor Jon Corzine took surprisingly swift action to close a number of well known loopholes in New Jersey’s campaign finance and public contracting laws. My preliminary analysis can be downloaded here.

Seemingly Sweeping Campaign Finance & Ethics Reform Proposal To Be Presented By Governor

According to the Associated Press, Governor Jon Corzine is set to enact a significant new campaign finance and ethics reform package by both executive order and through the introduction of new legislation addressing, among other items, the long-criticized practice of wheeling contributions between political and campaign committees. The Associated Press story outlines the pre-released proposal.

DOCUMENTS RELEASED AT 2:30 Press Conference Today:

The Overall Plan and Statement outling the Governor's executive orders that are intended to be codified into law and proposed legislation.

State Vendor Contribution Prohibition Expanded To Legislative Leadership and Municipal Party Committees

Executive Order 117 expands P.L. 2005, c. 51 (originally McGreevey E.O. 134) to further restrict contributions made by state vendors, and equity holding partners or members of such business entities, regardless of their equity interests, to provide a complete ban on reportable contributions ($300+) to legislative leadership committees and municipal political party committees. Such entities, or partners with 10% or more equity interests, are already banned from making such contributions to state political party committees, county political party committees and gubernatorial candidates pursuant to Chapter 51. This executive order also extends the gubernatorial candidate contribution ban to candidates for Lieutenant Governor who will be running for the first time next year. This order becomes effective November 15, 2008.

State Vendor Contribution Prohibition Expanded To Redevelopers

Executive Order 118 extends the Chapter 51 reportable contribution ban to redevelopers and their lobbyists or agents. No redevelopment agreements may be entered by state entities if the redeveloper has violated the contribution ban. This order appears to include redevelopment agreements required to secure state financing from the New Jersey Economic Development Authority, New Jersey Redevelopment Authority and New Jersey Environmental Infrastructure Trust, similar to the financing procured for the EnCap project that this order specifically intends to address. This order becomes effective November 15, 2008.

Local Government Ethics Task Force

Executive Order 119 creates a Local Government Ethics Task Force to determine whether changes need to be made to the 1991 Local Government Ethics Law and whether responsibility for enforcement of it should be removed from Local Finance Boards to some other entity focused on ethics. The Task Force will consist of eleven members appointed by the Governor, four of which will be at the recommendation of the legislative leadership from both parties. Upon formation, it must issue a report within ten months with its recommendations. This order is effective immediately.

Expansion of Personal Financial Disclosures

Executive Order 120 expands upon Governor Corzine's Executive Order No. 1 (2006), which required all personal financial disclosures from all executive branch officials and others serving on various state boards and commissions.

Fair Use and Licensing of Media Used By Campaigns

Politico.com provides an informative report regarding the licensing and use of music and other media for campaigns under federal copyright and trademark laws where property rights clash with free and unfettered political speech. This often overlooked area of law, as it relates to elections, arises every year as musicians, photographers, authors and other intellectual property owners claim that their works or products are being illegally used in the course of a political campaign. This clash of property versus political speech rights has grown with the proliferation of campaigning on the Internet.

One of the best resources for more information on fair use is Standford University's Copyright & Fair Use Library sponsored by the Stanford Law School's Center for the Internet & Society.

New Jersey 'Clean Elections' Program Dead -- For Now

Politickernj.com is reporting that Assembly Speaker Joseph Roberts (D-Camden) has declared New Jersey's Clean Elections program effectively dead due to Arizona's rescue/matching funds provision being held unconstitutional by a federal court. The suit was brought by the Goldwater Institute on August 21, 2008 in response to the U.S. Supreme Court's Davis decision earlier this year. See: Goldwater Institute's Complaint.