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Hill: Pay-to-play ban violates law

December 20, 2018

Fort Wayne’s ordinance limiting corporate campaign contributions likely violates state and federal laws, an advisory opinion from Attorney General Curtis Hill states.

The opinion, dated Sept. 24, argues that neither the City Council nor the mayor has the authority under Indiana’s Home Rule Act to regulate campaign contributions in local races. The ordinance also likely violates state statutes that govern local public contracting and the First Amendment to the U.S. Constitution, the opinion states. 

Advisory opinions are not legally binding. 

The ordinance in question was approved in December 2017 and prohibits corporate campaign donations to elected city officials in excess of $2,000 per calendar year. Donations from any employee who owns more than a 7.5 percent stake in a firm or company : as well as donations from that employee’s spouse or live-in children : count toward that limit. Firms that exceed the limit are barred from bidding on city contracts.

The law, known casually as the “pay-to-play” ordinance, took effect Jan. 1. Mayor Tom Henry vetoed the ordinance, but the council voted 6-3 to override the veto. 

“The ordinance at issue here imposes additional requirements for the city that exceed the council’s authority under the Indiana Home Rule Act,” the attorney general opinion states. “Accordingly, these additional requirements are invalid.”

Review of the ordinance was requested by Accelerate Indiana Municipalities, formerly known as the Indiana Association of Cities and Towns. 

The attorney general’s opinion in some places echoed one issued in 2011 under former Attorney General Greg Zoeller, in response to a similar ordinance proposed by the Fort Wayne City Council. 

“The city still lacks the authority today that it lacked in 2011,” Hill’s opinion states. “Simply put, as indicated in 2011, Fort Wayne lacks the authority to legislate in a subject matter area preempted by the state and particularly where proposed legislation directly conflicts with the state’s proper and authorized legislative and executive activity.” 

But that doesn’t mean that the ordinance will be repealed, said Andy Downs, director of the Mike Downs Center for Indiana Politics at Purdue Fort Wayne. Barring action by the City Council to remove the law, it would take a legal challenge to strike it down. 

″(The ordinance) is the sort of thing that would be likely on its way to a Supreme Court decision if it were to ever get challenged,” Downs said. “There are plenty of people who see it as violating the First Amendment.” 

But so far, there haven’t been any challenges filed in court. One reason for that, Downs said, could be that some companies just aren’t that upset by the rule change. 

“There are folks who use limitations like this to get out of being a donor,” Downs said. 

Even if a court challenge were filed and the law were stricken from the books, that doesn’t mean City Council members would be prohibited from asking about campaign contributions when contracts come forward for approval, Downs added. 

“From a public perspective, there’s nothing that says the City Council could not continue to ask questions,” Downs said. “Social pressure may be what causes businesses to not engage in pay-to-play, so to speak.”

dgong@jg.net

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