See this fascinating
article in the New York Times dealing with a proposed law to prevent
New York's major from using his personal funds to bankroll a campaign to
change the New York City charter to move to non-partisan city elections.
(Thanks to a reader for passing this along.)
The article notes the potential First Amendment problems with such a law,
but quotes some people, including a current city council member who taught
at Brooklyn Law School as believing such a law would be constitutional. From
the article:
But Mr. Perkins and Mr. Yassky argue that they believe there are already
precedents for limiting the political activities of elected officials. In
New York City, they note, elected city officials are not allowed to hold
political party posts — a limit, in effect, on a type of political expression
open to private citizens that was written into city law to limit the power
of elected officials after the municipal corruption scandals of the 1980's.
And city ethics rules put other restrictions on elected officials, they note,
requiring them to disclose some financial information, prohibiting them from
making certain investments, and barring them from soliciting campaign contributions
from subordinates.
"Those are restrictions on speech and political activity in the name of preventing
an overaccumulation of power in a few hands," said Mr. Yassky, who taught
at Brooklyn Law School before his election. "So I think this is well within
that tradition."
I wonder whether those restrictions on elected officials holding political
party posts would be upheld by the current Supreme Court. (Republican
Party of Minnesota v. White allows even judges to engage in some partisan
activities.) Moreover, Supreme Court's cases (such as Bellotti) have
barred expenditure limitations in ballot measure campaigns where the possibility
of quid pro quo corruption is absent.
The proposed law might be justified on equality grounds (the article quotes
a lawyer with NYPIRG as stating: "It is a dangerous concentration of power
for any one elected official or institution to be able to handpick a charter
commission, predetermine proposals sent to the voters, and then bankroll those
proposals with their personal wealth"), but those grounds for campaign finance
regulation were rejected by the Supreme Court in Buckley.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com