Document Type

Working Paper

Publication Date

2021

Disciplines

Constitutional Law | Election Law | Law

Center/Program

Center for Constitutional Governance

Abstract

Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they operate outside election law, and as they do not personally enrich their sponsors, they are usually not covered by ethics restrictions. Yet, due to their close connection to elected officials, their fundraising raises the same concerns of official favoritism or the appearance of such favoritism to donors that lie at the heart of public integrity law.

This article examines the rise of elected official affiliated nonprofits, the public integrity gap revealed by their activities. It presents proposals that would close that gap by requiring transparency and restricting pay to play donations, and considers the constitutional questions that likely would be raised by these proposals, The proliferation of elected-official-affiliated groups demonstrates that the connections between the elected officials and their supportive committees are real, as are the possibilities for undue influence and its appearance. It is past time to close the public integrity gap. Targeted disclosure requirements and limitations on pay to play donors are constitutionally appropriate mechanisms for doing so.

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