making local government more ethical

If Only a Large Campaign Contribution Could Be Considered a Conflict of Interest -- The Westminster Approach

In ethics codes, campaign contributions are sacrosanct. Nearly every ethics code excepts them from the definition of "gift," "personal benefit," "anything of value," or whatever they call money and goods given to government officials and employees. Limiting campaign contributions is a matter for campaign finance laws, because there is no conflict of interest involved.

Or is there? It is a conflict of interest to accept (and, not often enough, to give) money when there is an understanding that a government official will do something in return (the old quid pro quo). It is often considered a conflict of interest for a government official to accept anything from an individual or entity doing business with the city, and sometimes even to accept gifts at all over a certain minimal dollar figure.

It is hardly a secret that the campaign contribution is the form of money most often given with an understanding that an elected official will do something in return. It is also the most common form of money given to elected officials by those doing business with the city.

Yes, an ethics code is not the place to limit campaign contributions. But wouldn't it be the appropriate place to treat a campaign contribution as a conflict of interest?

Westminster, Colorado (pop. 110,000) has done just that.

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Section 5.12.1 of its charter reads,

(a) The acceptance or receipt by any Councillor or member of that Councillor's immediate family, or an organization formed to support the candidacy of that Councillor, of any thing of value in excess of one-hundred dollars ($100) from any person, organization, or agent of such person or organization, shall create a conflict of interest with regard to that Councillor's vote on any issue or matter coming before the Council involving a benefit to the contributing person, organization, or agent, unless such interests are merely incidental to an issue or question involving the common public good.

(b) For purposes of this Section, the following terms shall be defined as: (i)  "Thing of value" means money, employment, goods, services, or objects with any intrinsic value, including but not limited to, campaign contributions, loans, offsets to expenditures, contributions in kind, and independent expenditures by any person or organization on behalf of the candidacy of a Councillor, provided that such thing of value was received during the Councillor's current term of office or anytime within six (6) months prior to the commencement of the Councillor's current term of office.

Westminster goes right to the heart of the matter -- not the contribution itself, which is central to citizens' expressions of their political preferences -- but the effect of the other sort of contribution, the large contribution intended, possibly, not only to express a political preference (or not even, since often large contributions are given to both or all candidates by the same individual or entity), but also to influence the candidate.

If the contribution was not intended to influence the candidate, then the contributor won't mind that the candidate cannot participate or vote on any matter dealing with the contributor's interests. In addition, the candidate will not be placed in the position of appearing to favor someone who gave him or her a sizeable contribution or -- and this is certainly possible if the candidate is truly independent -- having to vote against a strong supporter. It's a win-win situation for everyone, so long as there was no intent to influence.

What makes this approach so effective is that it is very hard to prove an intent or understanding to influence, but it is very easy to prove that a sizeable campaign contribution was received.

The Westminster provision is far from perfect (for example, what about the contribution given the day after the vote?). But the approach is, I think, a good one. For one thing, there is no concern about participation in a program or about constitutionality, as there is with every other restriction on campaign contributions.

The Westminster approach is too good to be true and, alas, this approach does have one serious weakness: what politician is going to support it?

I would love to know of any other local governments that do something similar to this, ideas for making the approach work, and arguments against this approach.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548