Political Solicitation of Local Government Employees

See update below:
An issue that arises in many local governments involves campaign contributions from local government employees, which often appear to be coerced or required, that is, they appear to result from a misuse of office by elected officials. Often, it appears that the giving occurs because employees are concerned about keeping their jobs. This concern includes concern about retaliation as well as concern about what will happen if the candidate loses.

This issue arises because such contributions are not occasional, but instead very common. In smaller jurisdictions, employees often provide a majority of an elected executive's campaign funds.

Of course, many employees make campaign contributions because they think the boss is the best person for the job. But it is impossible for anyone to know this, and it is rare that employees will publicly complain about being coerced.

The most common way to deal with this issue is to prohibit officials running for office from soliciting local government employees for campaign contributions. The reason such contributions are not outright prohibited is that they are protected by the courts on free speech grounds. For example, a decision on this issue was made by a federal court with respect to Philadelphia city employees in Philadelphia Fire Fighters’ Union Local 22, AFL-CIO v. City of Philadelphia, 286 F. Supp. 2d 476 (E.D. Pa. 2003). The court found that the ban on voluntary political contributions imposed against firefighters violates the First Amendment rights of the firefighters, as well as Local 22, the union that represents them. The court rejected the city’s justification for the ban, that contributors could improperly influence hiring, promotions, and transfers, as well as compromise the integrity of Fire Code inspections.

Last month, the Seattle city council prohibited the solicitation of campaign contributions from city employees, according to an article on publicola.net. The law does not, however, go into effect until July 22. According to the article, on the day the law was passed, more than 25 percent of the mayor's contributions, about $93,000, had come from city employees. As of yesterday, the total had increased to nearly $127,000, (Update: according to an article in the July 15 Seattle Times, this figure was accidentally doubled; the figure is actually about $60,000). $60,000 is two-and-a-half times the city employee contributions to all other city races combined, and about 12% of the mayor's fundraising. In large cities, city employee giving is usually a smaller percentage than in smaller cities and towns.

Note that the new law won't change things very much since it only prohibits solicitations. Most incumbent mayors do not have to actively solicit employees. Employees know what is expected of them without a direct word being spoken or written (I've been told that on several occasions by local government employees). According to the Seattle ethics and elections commission's executive director, "enforcement will mostly be based on complaints, not proactive measures. 'I don’t think we can assume that people aren’t giving voluntarily, without being solicited,'" he is quoted as saying. And he's right -- coercion cannot be assumed, no matter how common it is or what form it takes.

But because only solicitation can be prohibited, and law rather than ethics is all that matters to many officials, some local governments care so little about the appearance of coercion that they provide for payroll deductions for campaign contributions.

The same problem occurs with contractors, only it is both more serious (contracts are supposed to be competitively bid, so that where contractors give large contributions, there is an implication that the procurement process can be fixed) and it involves larger sums of money (few employees give large amounts). Because the interest in preventing what can be seen effectively as bribes is strong, it is often seen as overriding contractors' freedom of speech rights. Therefore, many states, and some localities, prohibit contributions from contractors, which includes their owners, executives, and board members, and sometimes their families and even regular employees (since they too can be seen as being coerced).

Here is the explanation of San Diego's prohibition of solicitation of city employees:

Isn't political activity a protected constitutional right? How can the City tell me who I can't solicit?
The prohibition on solicitation is narrowly written to address a specific governmental concern. The solicitation prohibition is designed to prevent City employees from being pressured to give money to a candidate or measure they do not support. When such pressure comes from a supervisor or someone who works alongside a City employee, there is a potential threat of retaliation which may be perceived by the person being solicited. While political activity is indeed a protected right, the City has determined that in this instance that right is outweighed by a City employee's right to be free from undue pressure to financially support a political campaign.

One good thing about solicitation rules is that they apply not only to officials' campaigns but to anything, including others' campaigns, charitable contributions, contributions to unions, even loans and payments (legally, officials can't bring their girl scout children to work at cookie-selling time).

Allowing city employees to make campaign contributions can make elections look unfair. An unusual example of this occurred this year in Albuquerque, which has a public campaign financing program, where mayoral candidates are required to get 5,000 contributions of $5 in order to qualify for large public financing grants. According to an article in the New Mexico Independent, the incumbent mayor obtained over 50% of these contributions from city employees, and he did it in two weeks. In addition, 42% of the volunteers who collected these contributions were city employees. The city's employee relations manager collected the most contributions of any volunteer, 250.

A local professor, Tim Krebs, put this into context for the Independent. He said that "these numbers aren’t surprising, that they reflect the 'incumbency advantage' of a strong executive mayor. 'I’d say it’s pretty typical for ... a strong executive mayor to use the executive branch as his political organization. That is his organization — he runs it. As long as what he’s doing is within the law, which means city employees weren’t collecting on city time, then I’m not really surprised by these numbers.'

"At the same time, Krebs said, large numbers of city employees working for the mayor’s re-election does open him up to criticism. 'It is a risk,' Krebs explained. 'It leaves him open to criticism from his challengers -- that he’s leaning on people who rely on or owe him. But he can come back with the argument that it’s a reflection of his support rather than his incumbency.'"

One way to deal with employee fundraising is to prohibit both direct and indirect solicitation of city employees. Here is the City Ethics Model Code provision on political solicitation:

An official, employee, or municipal candidate may not knowingly request, or authorize anyone else to request, that any subordinate or potential future subordinate participate in an election campaign or make a political contribution. Nor may he or she engage in any political activity while on duty for the city, with the use of city funds, supplies, vehicles, or facilities, or during any period of time during which he or she is normally expected to perform services for the city, for which compensation is paid.

Robert Wechsler
Director of Research-Retired, City Ethics

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