Clean Government Decisions Law
Copyright 2003-2005 David Dilworth
Bribery laws are essentially worthless because they generally require the equivalent of an FBI sting to prosecute. The problem is that they are criminal laws. So no matter how much proof you have, unless one of the two people admit the bribery, no prosecutor will ever press charges. Even when you have proof that an elected official approved a project and the same day took a $1000 campaign contribution from the project owner there is nothing provably illegal unless one of the two people admit to the bribery on tape. This is because criminal statutes properly require proof "beyond a reasonable doubt."
California's Conflict of Interest law is called "The Political Reform Act of 1974." It completely allows huge campaign contributions if they are made 3 months after a decision. It even allows developers to give up to $250 during the 3 months after they get a vote of approval. It also allows any business or gifts acquired by the elected official after they make a decision! Finally, it does not prohibit gifts to sitting judges.
Campaign finance laws are fundamentally handicapped by constitutional free speech provisions. In 1976 the US Supreme Court declared that campaign contributions are almost as privileged as any other political speech. This is the infamous "money equals speech" decision in Buckley v. Vallejo. Until this is corrected, or at least significantly improved, campaign contribution limits can not lowered below that which is known to influence politicians.
What is needed is a different way to stop the influence of campaign contributions on specific government decisions that are in reality corrupt business transactions. A bonus is doing it without stepping on developer's and polluter's rights to free speech.
After working with campaign finance reform laws for some 17 years I decided to take a new look at the problem. I have found two ways to genuinely address this problem.
One way is to create an additional civil bribery law. The other method is more narrowly focused on prohibiting participation in governmental decisions by those who give or take money, rather than the very broad restrictions on everyone of campaign contribution limit laws.
There are three kinds of private money in campaigns: Soft money, Hard money and Diamonds for Puppets. Relative "Hard"ness indicates the degree of directness of the money to a political decision. "Soft" money does not go to a candidate, but it does promote them specifically. Hard money is given directly to a candidate. Diamonds for Puppets (diamonds because they are the hardest material) are those contributions given directly to a candidate explicitly intended (but never said) to influence their vote or influence on a project.
Beautifully, the more direct the campaign contribution, the easier it is to prohibit.
Halting Political-Financial Conflict of Interest campaign contributions is the heart the prize, of what we're trying to achieve; and stopping them does not run afoul of the free speech limits of traditional campaign finance contributions.
This new method needs no restrictions on campaign contributions, thereby avoiding the "campaign contributions equal free speech" problem. Just as importantly it is a civil law, as opposed to a criminal law, which only requires "a preponderance" (meaning only 51%" of the evidence) making it far easier to prosecute.
It allows even the most reprehensible corporation or its legal firm to essentially pay for a candidate's entire election campaign, to buy them a house or pay for their children's schooling -- allowing them unlimited "free speech." But if they do so, that public official is then prohibited from voting on, making a decision upon, or even trying to influence any decision where the contributor, their clients, or any immediate family members of those businesses would realize a benefit, financial or otherwise - greater than any member of the general public. Most importantly it prohibits a campaign contribution or a gift after the public official makes a decision on their project.
It also requires each public official to create and maintain a list of those who might have projects in front of them where they must step down.
The serious penalties for violating the public's trust in this way are intended to prevent rather than simply cure. It is important to realize that any government official can choose not participate in any specific governmental decision and they are never required to accept any campaign contribution, personal gift or business transaction. Because of this freedom of choice, if a public official despoils the sanctity of clean government decisions - they are permanently removed from office and the vote or decision is rescinded even if the "contribution" occurs at a later date.
It is important to understand this does not restrict a politician from voting on an issue a public interest groups advocates when they have donated to his/her campaign unless there is a financial benefit to the public interest group, or one of their donors, that is greater than members of the general public realizes.
The contributor, who also is never required to give any campaign contribution, personal gift or conduct any business transaction, who wrongly benefits from such a vote must pay a fine equal in value to the benefit that they would have realized - for each separate violation.
So far no one has been able to describe a constitutional conflict with this proposal. Indeed, perhaps more than a few corporations are tired of paying "protection" money to politicians who demand campaign contributions from them.
The Clean Government Decisions Ordinance
By David Dilworth*
(I donate this model ordinance to the public domain.)
An Ordinance to Halt Personal Financial Benefit by Political Decisions.
100. Any Monterey County Public Official is guilty of a harmful political financial conflict of interest who votes upon, makes a final decision upon, or influences, any issue which benefits any person who contributes in any way to the official's benefit, including any of their election campaigns or by any way described by Government Code Section 87103 (included below).
101. Any person is guilty of a harmful political financial conflict of interest when:
(a) They offer, or contribute in any way, directly or indirectly, to that Public Official's benefit, including any of their election campaigns; and
(b) They, or a client of theirs, receive any benefit, distinguishable from its effect on the public generally, from any issue that Public Official votes on, makes a final decision upon, or advocates upon.
102. No campaign contribution with a value of $20 or more may be deposited or spent until there is a public disclosure of the name, address and employer and the names of the contributor and all persons who solicited the contribution.
103. All votes, approvals, decisions or contracts made by any County Public Official with a harmful political financial conflict of interest are void when made and shall be rescinded as soon as possible after it is affirmed by a court. No reapplication for the same or a similar activity may be made for 10 years.
104. Each person found guilty of contributing to a harmful political financial conflict shall pay a fine to the County equal in value to the benefit which would have been reasonably realized by the vote, approval, decision or contract. The fines collected shall be used exclusively for enforcement of this ordinance.
105. Any County Public Official violating this section shall be removed from governmental office and employment, and may never again hold elected or appointed office or be employed by the County of Monterey.
106. If an item must be considered prior to a deadline, but the body does not have the needed quorum due to a Public Official having to recuse themselves by this provision, the item shall be recorded as denied.
107. Before taking office each government official shall prepare and maintain a list of those businesses, people and entities from which she or he and their immediate families have received any financial benefit. This list shall be continually updated no later than every month. The list shall be a public record and published on the web. Any vote cast by a public official in their official position shall be void if their list is in any significant way incomplete.
108. This ordinance should be liberally construed and strictly enforced to accomplish its purposes.
109. There is no statue of limitations for enforcing this ordinance.
"Benefit" means financially or by anything of value or advantage, tangible or intangible.
"Any person" includes any member of the person's immediate family, or their businesses.
"Public Official" means every elected, appointed or employed decision maker for Monterey County including every member, officer, employee or consultant; and their immediate families and their businesses as defined by Government Code Section 87103.
If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable.
California Government Code 87103.
A public official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family, or on any of the following:
(a) Any business entity in which the public official has a direct or indirect investment worth two thousand dollars ($2,000) or more.
(b) Any real property in which the public official has a direct or indirect interest worth two thousand dollars ($2,000) or more.
(c) Any source of income, except gifts or loans by a commercial lending institution made in the regular course of business on terms available to the public without regard to official status, aggregating five hundred dollars ($500) or more in value provided or promised to, received by, the public official within 12 months prior to the time when the decision is made.
(d) Any business entity in which the public official is a director, officer, partner, trustee, employee, or holds any position of management.
(e) Any donor of, or any intermediary or agent for a donor of, a gift or gifts aggregating two hundred fifty dollars ($250) or more in value provided to, received by, or promised to the public official within 12 months prior to the time when the decision is made. The amount of the value of gifts specified by this subdivision shall be adjusted biennially by the commission to equal the same amount determined by the commission pursuant to subdivision (f) of Section 89503.
For purposes of this section, indirect investment or interest means any investment or interest owned by the spouse or dependent child of a public official, by an agent on behalf of a public official, or by a business entity or trust in which the official, the official's agents, spouse, and dependent children own directly, indirectly, or beneficially a 10-percent interest or greater.
* Ten organizations endorsed this model ordinance as of November 2003 for the Monterey County Board of Supervisors to use to halt Conflicts of Financial Interests at the County -- HOPE - Helping Our Peninsula's Environment, WILPF - Women's International League for Peace and Freedom, Save Our Peninsula Committee, Carmel Valley Women's Network, Concerned Citizens of Monterey County, Say No to Fort Ord's Toxic Burning, Pacific Grove Neighbors, the Monterey County Green Party, Save Our Waterfront Committee, and VISION -Vision Inspiring the Sanctity and Integrity of Nature.
Feedback - Info(at)1hope.org
831 / 624-6500 P.O. Box 1495, Carmel, CA 93921
This Page Last Updated August 9, 2005