Elected-Official-Affiliated Nonprofits: Closing the Public Integrity Gap

Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they operate outside election law, and as they do not personally enrich their sponsors, they are usually not covered by ethics restrictions. Yet, due to their close connection to elected officials, their fundraising raises the same concerns of official favoritism or the appearance of such favoritism to donors that lie at the heart of public integrity law. This article examines the rise of elected official affiliated nonprofits, the public integrity gap revealed by their activities. It presents proposals that would close that gap by requiring transparency and restricting pay to play donations, and considers the constitutional questions that likely would be raised by these proposals, The proliferation of elected-official-affiliated groups demonstrates that the connections between the elected officials and their supportive committees are real, as are the possibilities for undue influence and its appearance. It is past time to close the public integrity gap. Targeted disclosure requirements and limitations on pay to play donors are constitutionally appropriate mechanisms for doing so

Election Law Localism and Democracy

American federal and state elections are largely run by local officials. Although election law is almost entirely determined by the federal government and the states, elections are actually conducted by thousands of different county and city elections offices. This decentralization of election administration has often, and fairly, been criticized as resulting in undesirable interlocal variation in the application of election rules, inefficiency, and racial discrimination. Yet, in 2020, local election administration, particularly in large urban areas, was a source of strength. Local officials proved to be resilient, innovative, and attentive to local conditions. The record-high turnout in the face of a once-in-a-century pandemic was in considerable part due to their efforts to make voting easier and more accessible. These efforts, in turn, have triggered a reaction, with many states adopting new laws intended to curtail local authority. This Article examines the local role in the 2020 election, together with the state pushback of 2021, as a study of both the surprising significance of local officials in promoting democracy and the place of local government in our intergovernmental system more generally. Local election offices are among the least formally empowered units of local government. They are charged solely with implementing state laws and policies. Yet, the 2020 election indicates they can exercise their authority to promote democracy in their communities. On the other hand, as with local governments generally, local power in election administration is fragile and can be stripped away by hostile state-level forces. By showcasing the importance of local elections officials, the 2020 election has made them a new site of conflict over the strength of American democracy

Three Issues for the City in the 21st Century

The title for this year’s program of the Section on Urban, State and Local Government Law of the Association of American Law Schools is The City in the 21st Century. These three articles provide a stimulating introduction to three issues that are likely to be central to the study of the city in the twenty-first century-as they were in the twentieth century and in the nineteenth century: the interplay of local and regional forces in land development, the battles among interest groups to control city hall, and the role of local government in promoting local economic development. These issues are frequently interconnected. Land use and economic development are usually the focal points of local political struggles, while the outcomes of local power struggles can affect land use and economic activity in ways unanticipated by local political actors. These issues also represent different facets of the difficult pursuit of the local public interest. As each author notes, private interests play important roles in the processes and products of local governance. Each understands the power of interest groups in local decision making and the fragility of the very notion of the local public interest. Yet, each also continues to look for ways of enhancing the possibilities for public-regarding local outcomes

The 527 Problem ... and the \u3cem\u3eBuckley\u3c/em\u3e Problem

In the world of campaign finance, 2004 was without a doubt the year of the 527 organization. No other aspect of campaign financing received as much press coverage or public attention as the rise of the 527s. Expenditures by 527s – named after the section of the Internal Revenue Code under which they are organized – active in federal elections amounted to at least $405 million, accounting for more than one-tenth of total federal election spending and perhaps twenty to twenty-five percent of spending in the presidential campaign. Federal Election Commission ( FEC ) Chairman Scott E. Thomas recently observed that [there is little doubt that 527 organizations … had a major impact on the 2004 federal elections, and Representative Mike Pence has called the 2004 election the [s]ummer of 527s.” Indeed, probably the most famous political communication of the past year was the anti-Kerry advertisement sponsored by the Swift Boat Veterans and POWs for Truth ( Swift Boat ), a 527 organization. Of course, celebrity is not the same thing as popularity. The rise of the 527s drew extensive critical commentary, with many observers contending that contributions to and expenditures by 527s were little more than evasions of the recently enacted Bipartisan Campaign Reform Act of 2002 ( BCRA ) and re-creations of the soft money problem that BCRA was supposed to have eliminated. Indeed, in the aftermath of the controversy surrounding the Swift Boat ad in late August 2004, President Bush denounced 527s (although not the content of the Swift Boat ad itself) and called for their elimination

\u3ci\u3eBush v. Gore\u3c/i\u3e as an Equal Protection Case

In Bush v. Gore, the United States Supreme Court applied the Equal Protection Clause to the mechanics of state election administration. The Court invalidated the manual recount of the so-called undervote – that is, ballots that vote-counting machinery had found contained no indication of a vote for President – which the Florida Supreme Court had ordered to determine the winner of Florida\u27s vote for presidential electors in the 2000 presidential election. The United States Supreme Court reasoned that the principles it had previously articulated in applying the Equal Protection Clause to the vote were violated by the Florida court\u27s failure to assure consistency between and within Florida\u27s counties in the determination of whether particular undervote ballots constitute legally valid votes. The Court correctly determined that the Equal Protection Clause applies to the state and local procedures affecting the casting and counting of ballots but was, for the most part, wrong to find that the Florida Supreme Court\u27s order denied Florida voters equal protection. In particular, the inconsistencies in counting undervotes, which the Florida court\u27s order appeared to tolerate and which so disturbed the United States Supreme Court, did not constitute an equal protection violation. Equal protection ought to apply to the nitty-gritty of local election practices because those practices can have the effect of disenfranchising voters and discriminating among identifiable groups of voters. Such practices can negate the right to vote and the right to an equally weighted vote – rights long protected by the Equal Protection Clause. However, with virtually every local administrative decision having the potential to burden some voters relative to others, the application of the Equal Protection Clause to election rules and procedures could effectively federalize an area which has long been the domain of state and local government. Decentralization of election administration reflects important political values, including the opportunities for local participation and decisionmaking concerning contestable political issues, as well as protection from centralized political manipulation and abuse. Decentralization necessarily entails variation in election practices across the different local units charged with administering the procedures for casting and counting ballots. Subjecting all interlocal differences in election rules and procedures to close constitutional scrutiny could eliminate meaningful decentralization of election administration