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Fair Elections or Special Protections?

December 14, 2017

Click here to read City of Spokane proposed Ordinance C35571

 

 

On December 18th, the Spokane City Council will consider Ordinance C35571. This campaign finance ordinance, dubbed the “Fair Elections Code,” is anything but fair as the following will point out.

 

It’s possible that this measure was drafted in good faith, however, the version set to be approved by the City Council will likely break the election system giving more power and influence to PACs & political parties, labor unions, and incumbent elected officials. Many of these new rules will actually help PACs like the one Better Spokane operates or the firefighter union backed, Spokane for Honest Government PAC.

 

There is needed reform to campaign finance laws, but they should take place at the state level. The biggest reason is that the City of Spokane cannot afford to devote resources to yet another bureaucracy, especially since this would be a duplication of what is already done at the state level. In addition, enforcing these rules on those outside the city could prove difficult. 

 

Who does ordinance C35571 actually help?

 

PACS & POLITICAL PARTIES

Although promoted by the City Council as a measure that would help challengers and give a broader spectrum of citizens a voice, the truth is this measure will do the opposite.

 

Section 01.07.030 strips everyday citizens of 50% of their power and influence in local elections and gives away that power to political committees.

 

Currently, any citizen can contribute $1000 per election ($2000 total) to any local candidate by State statute (these numbers are adjusted annually). Section 01.07.030A reduces the amount they can give to 50% of whatever the state allows. This means that the power and voice of each citizen in local elections will forever be half of what it was, while political committees and political parties, which have no limits on how much they can raise, nor how much they can spend on independent expenditures to benefit candidates, will increase their voice and their influence.

 

In past elections, nothing prevented citizens from contributing to candidates. Many chose to do so for personal or political reasons, but it's not as if there was a minimum contribution required to participate in local elections. There is no evidence to suggest that reducing the maximum contribution by half will encourage more participation. In fact, it is entirely likely that political committees and political parties will benefit from this because they can now solicit more money from larger contributors who can no longer directly participate as they have in the past.

 

LABOR UNIONS

The final ‘WHEREAS’ of the opening Resolution says the purpose of this measure is to “ensure fair play,” and Section 01.07.003(E) says the purpose of this ordinance is to “prevent corruption, and the appearance of corruption.”

 

Yet, the ordinance itself is corrupt.

 

By prohibiting the speech and election participation of any entity who has “a contractual relationship with the city” valued above $50,000 (including any business partners or even sub-contractors) as required under Section 01.07.040(A)(B), and then by not also fairly applying the same rule to collective bargaining groups, who have just as much to gain by influencing an election (if not far more) than most contractors or potential contractors, the measure seeks to give union organizations an edge on the competition. 

 

In fact, the seventh ‘WHEREAS’ statement says that contractors have donated “$88,000 to current elected officials,” which they claim has created the “appearance of quid pro quo corruption.” However, what they fail to point out, perhaps intentionally, is that labor unions have given current elected officials over $100,000 in direct contributions and at least another $65,000 in indirect contributions (these numbers are conservative estimates.) 

 

To suggest that contributions from contractors creates the perception of corruption and should be prohibited while contributions from labor unions and collective bargaining units is somehow not corrupt and should continue unfettered is in itself a corrupt idea that plays favorites with the current Council’s top donors. Why not apply the rules equally to “ensure fair play?”

 

INCUMBENT ELECTED OFFICIALS

Not all situations are equal, but It’s a generally accepted notion that challengers are typically the underdogs in political campaigns due to the ‘power of incumbency.’ Section 01.07.030(B) amplifies the power of incumbency by limiting receipt of “campaign contributions” to an “election cycle,” which is defined as Jan 1 of the election year until the date the election is certified in late November.

 

The power of incumbency is the result of an office holder  looking like and acting as a leader by sitting at the dais, proposing and passing resolutions and ordinances, getting special recognition by the media and/or at public events. Incumbents have nearly limitless opportunities to network and meet with constituents throughout their tenure. Combatting the power of incumbency can be an uphill battle for any challenger. The best option is to run a vigorous political campaign focused on raising their name Identification very fast and very early so that they can be seen as a credible opponent and taken seriously by the public. This typically requires significant contributions, because unlike the incumbents, most challengers haven’t received the special recognitions nor the networking opportunities, and it is quite likely that the media won’t be providing equal time on air or in print (barring a scandal of course). So by creating this election cycle, defeating entrenched incumbents is made all the more difficult for potential challengers looking for that early start.

 

Currently, candidates can self-fund – meaning they contribute their own money to their campaign with no intention of being reimbursed, or as is more common, many candidates loan themselves money to get started and then pay themselves back as contributions fill their coffers. Under this measure, neither would be permitted until Jan 1 of the election year. There is no carve out for personal contributions and loans are expressly prohibited prior to Jan 1. However, for an incumbent, there is no prohibition on campaign expenditures, which means an incumbent with surplus dollars left over from their last campaign will have money in the bank that they can spend as they see fit to promote their candidacy prior to the start of that election cycle on Jan 1.  This means a candidate hoping for an early start would truly have zero opportunity, and in fact, would have to effectively sit out until the “election cycle” begins.

 

This is actually backwards compared to how the Washington State Legislature operates. Legislative incumbents spend months during the year of their re-election unable to raise or solicit money while they operate under a ‘freeze,’ during the legislative session. However, their opponents can raise money and campaign during this 'freeze.' It’s an advantage that challengers have which allows them to battle that power of incumbency. However, it should be pointed out that the day the freeze ends, most incumbents will find a stack of checks in the palms of their hands. Under this “fair election code” the outcome won’t be so different, except the incumbents will now unfairly have the advantage 100% of the time.

 

Enforcement

 

If this measure is enacted, big questions remain as to how it would be effectively enforced on those residing outside the City. The biggest example would be FUSE Washington, a progressive organization located in Seattle who frequently participates in local Spokane elections. To be clear, this wouldn't just be limited to them, in fact, groups like the Spokane Home Builders Association are located in the Spokane Valley, while the Spokane Association of Realtors maintain their Political Action Committee in Olympia.

 

Another glaring anti-transparency measure included in the code can be found in Section 01.07.110(C), which says that, “A candidate, political committee, or incidental committee may not use contributions to pay for any fine imposed…”  Well, effectively, that means that we will never know where the money comes from to pay for the fine. If a violation occurs, it would make the most sense to require that it be paid for by contributions, so that it is reported publicly. Otherwise, someone in the dark can write a big check or the money can come the coffers a labor union and no one would ever know because it wouldn't be a contribution to a campaign and it wouldn't be reportable. 

 

 

Where is This Ordinance Taking Us?

 

TAX PAYER FUNDED POLITICAL CAMPAIGNS

In 2016, the proponent of this ordinance sponsored and led the fight to implement something called “Democracy Credits.” This would have been a tax payer financing system for political campaigns. This ordinance, in Section 07.08.149 creates what’s called the “democracy fund.” For now, the ordinance says it will be used to defray the costs of this ordinance and the money will come from fines, but breaking the system as the measure does and creating this special fund seems to all be in furtherance of the goal of eventually making all tax payers line the pockets of politicians by paying for their political campaigns. 

 

Other Options

 

First and foremost, rather than drafting up new rules that will create all kinds of unintended (or intended) consequences, what we need is to have a statewide conversation regarding best practices with political campaigns, transparency, and reporting. It should include diverse cross-section of voices, with varying interests and experiences in political campaigning and open government advocacy.

 

In my opinion, there are some rules that are antiquated and could be updated to better reflect modern practices. It’s clear that the Public Disclosure Commission (PDC), which is the state agency in charge of campaign finance regulation, needs strong, non-partisan leadership, and better funding to enforce the rules that exist, and any potential new rules that may be implemented.

 

One idea I have long advocated for (and this is just one thought) is the notion of real time reporting. While perhaps a bit controversial, this could provide added campaign transparency. Many campaigns already use an app created by the PDC called Orca for reporting all of their finances to the PDC database. What would be helpful, is if there was software developed (perhaps Microsoft could loan some assistance in the name of transparency) that would connect directly to a campaign's bank account and provide a real time view of contributions and expenditures to the public. If done correctly this could provide not just more transparency, but even reduce the amount of time and expense campaigns put into PDC compliance. Perhaps, the PDC could host a hack-a-thon to see who could come up with some of the best apps and software ideas for increasing transparency while reducing the load on political campaigns and committees. 

 

A Final Note on Transparency

 

Lastly, on the topic of transparency, if this Spokane City Council is really interested in transparency and open government, they should take a long hard look at their own backyard. The instances of this Council dropping ordinances with little time to understand the impacts or amending ordinances at the last minute with no public input are too numerous to count. How about the number of times they release agendas for their committee meetings late? How many of their official committee meetings or study sessions are streamed live online or at least recorded for later public viewing? Answer: practically none. How easy is it for the public to track where legislation is in process, which council member proposed what, who amended an ordinance and in what way, who voted yes and who voted no? Answer: it's incredibly difficult to impossible. 

 

Open government and transparency should be just as much a priority when it comes to the actions of the Spokane City Council (or any other government agency).  

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