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591
ELECTED-OFFICIAL-AFFILIATED NONPROFITS:
CLOSING THE PUBLIC INTEGRITY GAP
RICHARD BRIFFAULT
*
INTRODUCTION
In December 2013, shortly after winning election as New York City’s
mayor—and some weeks before he was sworn into office—Bill de Blasio
announced the formation of a “star-studded” public relations campaign that
would help him secure the New York state legislature’s support for the funding
of a centerpiece of his successful election campaign—universal
pre-kindergarten for New York City’s children.
1
The campaign would be run
by a newly formed § 501(c)(4) tax-exempt corporation
2
—the Campaign for One
New York (CONY)—which would raise donations from individuals,
corporations, unions, and advocacy organizations to build public support and
lobby Albany for “universal pre-K.”
3
Over the next two-and-one-half years,
CONY raised and spent over four million dollars, initially in support of
universal pre-K, and then, after that goal was achieved, to promote another
plank in the Mayor’s 2013 campaign platform—changes to the city’s land use
* Joseph P. Chamberlain Professor of Legislation, Columbia University School of Law. The
author was chair of the New York City Conflicts of Interest Board (COIB) during some of the period
addressed in this Article. The facts discussed in this Article are drawn entirely from public reports
and do not reflect any information the author gained from his COIB service. The opinions expressed
are not intended to reflect any views of the COIB and are entirely his own.
1
. See Jill Colvin, Bill de Blasio Launches Star-Studded Campaign for Universal Pre-K,
OBSERVER (Dec. 19, 2013), https://observer.com/2013/12/bill-de-blasio-launches-campaign-for-
universal-pre-k/.
2
. Internal Revenue Code Section 501(c)(4) provides that the earnings of an entity organized
not for profit but exclusively for promoting social welfare are not subject to income taxation. As
“[s]eeking legislation germane to the organization’s programs is a permissible means of attaining
social welfare purposes . . . ,” a § 501(c)(4) social welfare organization may engage in lobbying.
IRS, SOCIAL WELFARE ORGANIZATIONS (2020), https://www.irs.gov/charities-non-profits/other-
non-profits/social-welfare-organizations. As “[t]he promotion of social welfare does not include
direct or indirect participation or intervention in political campaigns on behalf of or in opposition
to any candidate for public office,” a § 501(c)(4) social welfare may not engage in electioneering.
Id. However, it “may engage in some political activities, so long as that is not its primary activity.”
Id. Despite the limits on the legal ability of § 501(c)(4) organizations to engage in campaign
activities, they have become important “dark money” actors in elections. See, e.g., Sheldon
Whitehouse, Dark Money and U.S. Courts: The Problem and Solutions, 57 HARV. J. LEGIS. 273,
277 (2020).
3
. Id.
592 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
and zoning rules to increase affordable housing.
4
The Mayor played an active
role in fundraising for CONY, which received huge donations from real estate
interests, unions, and other groups that did business with the City, and he
participated in its activities, including attending fundraising events hosted by
CONY.
5
Much of CONY’s spending went to public relations and consulting
firms that had ties to de Blasio’s 2013 mayoral campaign and much of its public
campaign activity—videos aired on television or posted to social media
platforms, robocalls, and mailers—featured either the name or appearance of
the Mayor or his wife.
6
Unsurprisingly, CONY and the Mayor’s fundraising for it soon became
the focus of considerable adverse attention, with the media, public interest
groups, and watchdog organizations expressing concern that donors were being
rewarded with favorable action by the City on matters affecting them.
7
These
allegations triggered investigations by law enforcement agencies, but ultimately
no charges against the Mayor were brought.
The New York City Campaign Finance Board (CFB) determined that
CONY’s creation and distribution of communications promoting the Mayor,
and the “extensive and repeated overlap” of CONY’s staff with the staffs of de
Blasio’s 2013 and planned 2017 election campaigns, his mayoral staff “and Mr.
de Blasio himself” established “coordination” between CONY and the Mayor’s
election activities within the meaning of the City’s campaign finance law.
8
So,
too, the contributions to CONY were wildly above the amounts allowed by the
campaign finance law and were from sources forbidden to contribute to
municipal election campaigns.
9
But the City’s campaign finance law had not
been broken. CONY’s communications in 2014 were after the 2013 election
but also “occurred more than three years before [de Blasio’s] next covered
election” in 2017.
10
As a result, they could not be considered part of an election
regulated by the campaign finance law or the kind of campaign activity that the
4
. See J. David Goodman, Nonprofit Linked to Mayor de Blasio is Closing, N.Y. TIMES
(Mar. 17, 2016), https://www.nytimes.com/2016/03/18/nyregion/nonprofit-group-campaign-for-
one-new-york-with-close-ties-to-mayor-de-blasio-is-closing.html.
5
. See N.Y.C. Council Int. No. 1345-A, 5–6 (N.Y. 2016). Accord Laura Nahmias, De Blasio
Took Unusually Personal Role in Fundraising for Nonprofit, POLITICO (May 26, 2016),
https://www.politico.com/states/new-york/city-hall/story/2016/05/de-blasio-took-unusually-perso
nal-role-in-fundraising-for-nonprofit-102092.
6
. Id.
7
. See, e.g., Michael Grynbaum, De Blasio Said to Seek Donations for Nonprofit to Promote
His Policy Goals, N.Y. TIMES (Mar. 10, 2015), https://www.nytimes.com/2015/03/11/nyregion/m
ayor-de-blasio-is-quietly-soliciting-donations-for-future-policy-battles.html?searchResultPosition
=27.
8
. N.Y.C. Campaign Fin. Bd. Final Determination No. 2016-1 (July 6, 2016),
https://www.nyccfb.info/law/advisory-opinions/2016-1-campaign-one-new-york-and-united-affor
dable-nyc/ [hereinafter CFB 2016].
9
. Id.
10
. Id.
2021] ELECTED-AFFILIATED NONPROFITS 593
Board had authority to regulate.
11
By the time the Board issued its
determination in July 2016, CONY had stopped soliciting contributions and had
begun to wind down its operations.
12
Similarly, the Acting U.S. Attorney for the Southern District of New
York—whose investigation also encompassed donations-for-favors allegations
concerning contributions to de Blasio’s 2013 mayoral election campaign as well
as to CONY
13
—declined to bring any federal criminal indictments. His public
statement concerning the matter referred to “several circumstances in which
Mayor de Blasio and others acting on his behalf solicited donations from
individuals who sought official favors from the City, after which the Mayor
made or directed inquiries to relevant City agencies on behalf of those
donors.”
14
Nonetheless, the U.S. Attorney determined not to charge the Mayor
or his agents citing “the high burden of proof, the clarity of existing law, any
recent changes in the law, and the particular difficulty of proving criminal intent
in corruption schemes where there is no evidence of personal profit.”
15
As the CFB and U.S. Attorney statements underscore, CONY’s activities
and de Blasio’s fundraising for them fell between two regulatory regimes—
election law and ethics. Election law regulates the raising and spending of
money for elections. But de Blasio’s fundraising and CONY’s spending took
place shortly after one election and long before the next one. Although the
favorable references to de Blasio in CONY’s advertising and public
communications could have had “promotional benefits” for him, the CFB
reasonably concluded that those benefits “likely dissipated” during the more
than three years until the next election.
16
Moreover, CONY’s spending
“focused on issues being discussed by a governmental body.”
17
They were not
“sham” issue advocacy intended to disguise campaign advertisements, but real
11
. Id.
12
. Id.
13
. See William K. Rashbaum, Federal Inquiry into Mayor de Blasio Is Said to Focus on
Whether Donors Got Favors, N.Y. TIMES (Oct. 19, 2016 https://www.nytimes.com/2016/10/19/ny
region/bill-de-blasio-donors.html.
14
. Press Release, Acting U.S. Attorney Joon H. Kim Statement on the Investigation into
City Hall Fundraising (Mar. 16, 2017) (on file with the U.S. Dep’t of Just.).
15
. Id. (emphasis added).
16
. CFB 2016, supra note 8.
17
. Id.
594 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
advocacy for an issue central to the Mayor’s policy agenda.
18
CONY may have
been lobbying,
19
but it was not electioneering.
By the same token, ethics regulation aims, inter alia, at preventing public
servants from misusing their offices for personal gain, which typically means
financial gain for the public servant, a family member, or a business associate.
In the words of New York City’s conflicts of interest law, “[n]o public servant
shall use or attempt to use his or her position as a public servant to obtain any
financial gain, contract, license, privilege or other private or personal advantage,
direct or indirect, for the public servant or any person or firm associated with
the public servant.”
20
But, as the U.S. Attorney’s statement indicated, the
contributions de Blasio solicited were not intended to line his pocket or pad his
bank account, but were to be used to advance his public policy goals.
21
To be sure, CONY’s spending could have had both electoral and personal
benefits for the Mayor. Achieving universal pre-K and changing zoning rules
to promote affordable housing would demonstrate both his effectiveness in
accomplishing his campaign promises and, if successful and popular as policies,
would support his case for re-election. That could also be considered a
“personal advantage” for any politician who wants to hold elective office. But
election law rules are focused on the regulation of elections tout court, not the
policy-making process generally, and ethics rules are targeted on the use of
office for “personal profit,” not policy success. The political advantages and
personal gratification resulting from achieving the policies a politician has
campaigned for are, in themselves, neither ethical nor electoral misconduct.
Indeed, in a democratic society, one might hope that a politician would reap
18
. In campaign finance law, “issue advocacy” refers to a communication that explicitly
refers to a candidate—often quite harshly—but is not considered to be a campaign message and
therefore not subject to campaign finance law restrictions because it avoids expressly advocating
the election or defeat of that candidate. See generally Richard Briffault, Issue Advocacy: Redrawing
the Elections/Politics Line, 77 TEX. L. REV. 1751 (1999). The distinction between express advocacy
and issue advocacy was created by the Supreme Court, in Buckley v. Valeo, to protect general
political speech from campaign regulation. See Buckley v. Valeo, 424 U.S. 1, 14, 16–19, 23, 29
(1976). As many scholars have pointed out, it is easy to create effective campaign ads that fall within
the issue advocacy exemption. See, e.g., Briffault, supra. Ads that purport to be about political
issues but are really campaign advertisements have come to be known as “sham issue ads.” See,
e.g., McConnell v. FEC, 540 U.S. 93, 185 (2003).
19
. See New York State Joint Comm’n. on Pub. Ethics v. Campaign for One N.Y., Inc., 37
N.Y.S.3d 851 (N.Y. Sup. Ct. 2016) (noting that CONY had registered as a lobbyist for 2014 but
was resisting registering as a lobbyist for 2015).
20
. N.Y.C. Charter § 2604(b)(3).
21
. Of course, the contributions provided significant financial rewards for consultants and
lobbyists politically allied with Mayor de Blasio. See, e.g., Samar Khurshid, The Hole in the
Mayor’s Money-into-Pockets Defense, GOTHAM GAZETTE (Mar. 9, 2017),
https://www.gothamgazette.com/city/6797-the-big-hole-in-the-mayor-s-money-into-pockets-defen
se; Thomas Kaplan, Mayor de Blasio’s Hired Guns: Private Consultants Help Shape City Hall,
N.Y. TIMES (Nov. 4, 2015), https://www.nytimes.com/2015/11/05/nyregion/mayor-de-blasios-
hired-guns-private-consultants-help-shape-city-hall.html.
2021] ELECTED-AFFILIATED NONPROFITS 595
both electoral rewards and personal pleasure from successfully pushing for good
public policies.
Yet, as the complaints about the Mayor’s fundraising indicate, there is
something problematic about elected officials being able to raise unlimited sums
from individuals or organizations with business pending or potentially pending
before them or their subordinates for programs—even socially worthy
programs—that are among their top political priorities. The very same concerns
that drive the regulation of both campaign contributions to candidates and gifts
to public servants—that the official’s decision-making will be more receptive
to the interests of their donors, and the public perception that such skewed
decision-making occurs—are present when elected officials or their agents
solicit funds for organizations intended to promote their policy goals,
particularly when they are publicly identified with its operations.
CONY and Mayor de Blasio were operating in what I call a “public
integrity gap” when they sought funds for a purpose neither electoral nor
personally financially beneficial to the Mayor from individuals or organizations
whose interests the Mayor was in a position to favor with the powers of his
office. Nor was the CONY episode unique. The last decade has witnessed the
growing use by elected officials, particularly state and local chief executives, of
affiliated nonprofit organizations to advance their policy goals.
22
Some of these,
like CONY, are engaged in public advocacy for the executive’s legislative or
regulatory program. Some, like the Mayor’s Fund for Los Angeles,
23
operate
more like conventional charities, seeking philanthropic support for a range of
social welfare programs like youth employment, assistance for the homeless, or
disaster relief. Yet to the extent they involve fundraising by chief executives or
their agents,
24
staffing by close associates of the chief executive, or public
communications that prominently feature the name or likeness of the chief
executive, they also raise the concerns of official favoritism or the appearance
of such favoritism to donors that lie at the heart of public integrity law.
This Article addresses this public integrity gap and possible means for
closing it. Part II examines the emergence of elected-official-affiliated
nonprofits, particularly at the state and local level. Part III considers the public
integrity gap revealed by these nonprofits and regulatory approaches that would
22
. See, e.g., Karyn Bruggeman and National Journal, The Permanent Campaign: How
Outside Money is Changing the Way Governors Do Business, ATLANTIC (Mar. 12, 2015),
https://www.theatlantic.com/politics/archive/2015/03/the-permanent-campaign-how-outside-mone
y-is-changing-the-way-governors-do-business/434802/.
23
. See MAYOR’S FUND FOR LOS ANGELES, https://mayorsfundla.org/home/ (last visited
Mar. 8, 2021).
24
. See, e.g., Eric Garcetti’s Mayor’s Fund Lets Companies Give Big, L.A. TIMES (Mar. 3,
2015); Anna Sanders, Nonprofit to Raise from Donors with Business Before City – Skirting
Campaign Finance Rules in Quest for City Hall, N.Y. DAILY NEWS (Aug. 11, 2019),
https://www.nydailynews.com/news/politics/ny-eric-adams-nonprofit-donors-business-before-city
-campaign-finances-20190811-ifhehrejurbi7l3pswqza6hjua-story.html.
596 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
close the gap.
25
Like our laws dealing with both elections and ethics, new
regulations need to focus on promoting transparency and restricting pay-to-play
donations.
26
In the aftermath of the CONY episode, New York City adopted
such a law, which provides a template for other jurisdictions to consider. Part
IV explores the constitutional questions that likely would be raised by
regulating officeholder-affiliated nonprofits. Part V concludes.
II. THE RISE OF ELECTED-OFFICIAL-AFFILIATED NONPROFITS
A. Advocacy Organizations
The precise origins of the phenomenon of elected-official-affiliated
nonprofits are uncertain. A study by the Brennan Center for Justice points to
the establishment of Organizing for Action (OFA) at the start of President
Obama’s second term in 2013. OFA was started by veterans of the Obama
White House and of his 2012 reelection campaign to promote and defend
Obamacare and “other signature policies of the then-president.”
27
This OFA
was actually a descendant of an earlier OFA—Organizing for America—which
was formed on the eve of Obama’s first term in 2009. That OFA, in turn,
consciously echoed an even earlier OFA—Obama for America—which was
Obama’s 2008 presidential campaign committee. The 2009 OFA also sought
25
. In an important recent article, Professor Nicholas Stephanopoulos examines an
overlapping phenomenon—what he calls “Quasi Campaign Finance.” Nicholas O. Stephanopoulos,
Quasi Campaign Finance, 70 DUKE L. J. 333 (2020). His focus is on public campaigns waged
outside the electoral context by wealthy individuals, businesses, labor unions, and the nonprofits
they support. In his view, because these campaigns “pay[] for political communications with voters”
then even though “these communications are nonelectoral yet [they] rely on an electoral link to be
effective,” and so can be considered to be quasi-electioneering. Id. at 336. Acknowledging Professor
Stephanopoulos’s point that the ultimate goal of electioneering is policymaking, I am more inclined
to treat electioneering and policymaking as distinct spheres, with different practices and subject to
different rules, although they are closely related, and both fall within the broader domain of
democratic self-governance. I am not sure how much turns on the difference between treating
elected-official-affiliated nonprofits as a special case of quasi campaign finance, or as its own
problem—although my approach may have the advantage of seeing the funding of
elected-official-affiliated nonprofits through the government ethics as well as the campaign finance
lens.
26
. “Pay-to-play” restrictions limit the ability of an individual or entity to contribute to the
campaign of an elected official who has the power to take a discretionary official action that can
directly benefit the donor. See, e.g., N.Y. State Republican Comm. v. SEC, 927 F.3d 499 (D.C. Cir.
2019) (sustaining SEC rule limiting political contributions of broker-dealers, who act as “placement
agents” for investment advisers to help them secure contracts advising a government entity).
27
. CHISUN LEE, DOUGLAS KEITH & AVA MEHTA, BRENNAN CTR. FOR JUST., ELECTED
OFFICIALS, SECRET CASH: HOW POLITICIANS USE NONPROFITS TO CLOAK SPENDING AFTER
ELECTION DAY 2 (2018), https://www.brennancenter.org/sites/default/files/publications/EO%20S
ecret%20Cash.%20Foreword.%20March%2023.pdf.
2021] ELECTED-AFFILIATED NONPROFITS 597
to promote Obama’s legislative priorities, particularly health care reform,
28
but
that OFA was a project of and housed in the Democratic National Committee,
and therefore subject to the federal campaign finance laws applicable to political
parties, including contribution limits and disclosure requirements.
29
The 2013
OFA was independent of the party and officially non-partisan. However, its
formation was jointly announced by Obama’s 2012 campaign manager and First
Lady Michelle Obama,
30
and its executive director came directly from the
Obama White House staff,
31
so its connection to President Obama was apparent.
By formally separating from the Democratic Party and organizing as a
§ 501(c)(4) social welfare organization, the 2013 OFA could raise unlimited
funds without having to report their sources, although it ultimately chose
voluntarily to disclose its donors.
32
At the subnational level, there were elected-official-affiliated nonprofits
even before the OFA morphed into its nonprofit form. At his urging, business
allies of newly-elected Governor Andrew Cuomo in late 2010 created a
§ 501(c)(4) organization—the Committee to Save New York (CSNY)—to raise
and spend money to promote Cuomo’s legislative agenda, which included
balancing the state’s budget through spending cuts and public employee pension
reforms, rather than new taxes or tax increases.
33
The incoming governor feared
the likely resistance of powerful public employee unions to his budget
initiatives and urged business interests to use the CSNY to mount a public
relations campaign as a counterweight to the unions. Although Cuomo was not
directly engaged in the operations of or fundraising for CSNY, “a public
relations and consulting firm closely tied to the new governor”
34
represented the
organization. Cuomo publicly endorsed the group, which, in turn, spent
millions on radio and TV advertisements promoting his agenda. The
advertisements often featured and praised him by name; one was so positive that
28
. Paul Steinhauser, ‘Obama for America’ to Morph into ‘Organizing for Action’, CNN:
POLITICAL TICKER (Jan. 18, 2013, 10:37 AM), https://politicalticker.blogs.cnn.com/2013/01/18/o
bama-for-america-to-morph-into-organizing-for-action/.
29
. Id.
30
. Id.
31
. Rick Cohen, Who Does Organizing for Action Work for?, NONPROFIT Q. (Jan. 18, 2013),
https://nonprofitquarterly.org/who-does-organizing-for-action-work-for/.
32
. See Organizing for Action: Who’s Giving to Obama-Linked Nonprofit?, OPEN SECRETS
https://www.opensecrets.org/news/2014/06/organizing-for-action-whos-giving-to-obama-linked-n
onprofit/ (June 17, 2014). According to a study conducted by the Center for Responsive Politics and
the Sunlight Foundation, “[m]any of OFA’s donors . . . turn out to be major political givers with
long histories of backing Democratic candidates.” Id.
33
. Charles V. Bagli, Business Group Prepares Plan to Counter Unions, N.Y. TIMES (Jan.
7, 2011), https://www.nytimes.com/2011/01/08/nyregion/08save.html?searchResultPosition=4.
34
. Nicholas Confessore & Thomas Kaplan, Group Takes on Albany with Cuomo’s
Blessing, N.Y. TIMES (Jan. 17, 2011), https://www.nytimes.com/2011/01/18/nyregion/18cuomo.ht
ml?searchResultPosition=21.
598 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
it later wound up on the governor’s website promoting his budget proposal.
35
CSNY did not directly coordinate its actions with Cuomo, but, as a committee
spokesman (who had previously worked for Cuomo’s father, Governor Mario
Cuomo) explained, it did not have to: “[w]e know what the governor’s agenda
is, and we don’t need a lot of guidance.”
36
CSNY was the top spending lobbying
organization in New York State in 2011 and 2012 before disbanding. Media
accounts linked CSNY’s dissolution to a new state law requiring lobbying
organizations like CSNY to disclose their donors, as well as to the negative
public attention to a large donation to CSNY from a gambling company, which
seemed to coincide with the Governor’s endorsement of an expansion of casino
gambling in the state.
37
The use of state or local elected-official-affiliated nonprofits was not
limited to Democrats, or to New Yorkers. In New Jersey, Republican Governor
Chris Christie benefited from the public advocacy of two different § 501(c)(4)
committees. Reform Jersey Now, set up shortly after Christie took office in
2010, quickly raised over $600,000, which it spent on radio advertisements,
robocalls, and mailers to promote his agenda of civil service reform, public
employee pension and benefit changes, and a property tax cap.
38
Christie denied
any “responsibility” for the group,
39
but he welcomed its support,
40
and was a
featured speaker at one of the group’s significant public events.
41
Officially
nonpartisan, the group’s “volunteer advisory board reads like a who’s who list
of the state’s Republican establishment” and Christie’s chief strategist during
his gubernatorial campaign was the group’s spokesman.
42
Donors included
35
. Thomas Kaplan, Coalition Spends Millions Promoting Cuomo’s Agenda, N.Y. TIMES
(Jan. 18, 2012), https://www.nytimes.com/2012/01/19/nyregion/cuomo-gets-help-promoting-
agenda-from-business-leaders.html?searchResultPosition=20.
36
. Confessore & Kaplan, supra note 34.
37
. See, e.g., Casey Seiler, Saying They Accomplished Their Goals, CSNY Disbands, TIMES
UNION (Aug. 30, 2013), https://blog.timesunion.com/capitol/archives/194179/saying-they-
accomplished-their-goals-csny-disbands/; Michael Gormley, Cuomo Lobbying Group Loses
Contributions as State Ethics Law Requires Donor Disclosure, SARATOGIAN (May 12, 2013),
https://www.saratogian.com/news/cuomo-lobbying-group-loses-contributions-as-state-ethics-law-
requires-donor-disclosure/article_46af8bb9-af11-52c0-8679-fb31eeef5d06.html; Editorial, The
Governor and the Committee, N.Y. TIMES (June 5, 2012), https://www.nytimes.com/2012/06/06/o
pinion/gov-cuomo-and-the-committee.html?searchResultPosition=1.
38
. See, e.g., Lisa Fleisher, Pro-Christie Group Reveals Political Spending, WALL ST. J.
(Dec. 29, 2010), https://www.wsj.com/articles/BL-METROB-11304; Matt Friedman, Reform
Jersey Now Has Raised $624K to Push Gov. Christie’s Agenda (Dec. 29, 2010),
https://www.nj.com/news/2010/12/reform_jersey_now_raises_624k.html.
39
. See Gov. Christie States He’s Not Responsible for Reform Jersey Now Group that Skirts
Pay-to-Play Rules, NJ.COM (Apr. 1, 2019), https://www.nj.com/news/2010/07/gov_chris_christie
_defends_tie.html.
40
. Id.
41
. See Darryl Isherwood, Christie Attends Reform Jersey Now Breakfast, OBSERVER (June
23, 2010), https://observer.com/2010/06/christie-attends-reform-jersey-now-breakfast/.
42
. Friedman, supra note 38.
2021] ELECTED-AFFILIATED NONPROFITS 599
major state contractors.
43
Christie subsequently benefited from the work of a
second § 501(c)(4), the Committee for Our Children’s Future, “a group set up
by his college friends,” that spent more than $6 million on television
advertisements and other efforts to promote his agenda and salute his efforts.
44
Although Christie emphasized his independence from this group as well,
45
its
communications praised him and his programs. One television advertisement
“portrayed [Christie] as the adult” in state government, cleaning up the mess
left by the childish legislature.
46
Christie’s Democratic successor as governor of New Jersey, Phil Murphy,
has also enjoyed the backing of a well-financed supportive § 501(c)(4). Shortly
after Murphy’s election in 2017, three former campaign aides formed New
Directions New Jersey to promote his agenda. The group, run by his former
campaign manager, former campaign consultants, and former campaign pollster
raised $6.8 million within its first two years. Like Cuomo’s CSNY, it spent
heavily during the state’s budget season on television advertisements—in which
Murphy starred—urging the legislature to enact Murphy’s budget program;
although unlike Cuomo and CSNY, Murphy and New Directions New Jersey
were seeking a tax increase, not spending cuts. After considerable public
controversy and embarrassment for the Governor, the committee, which was
under no legal obligation to disclose its donors, finally did so, revealing that
most of its money came from the State’s public sector unions.
47
And, of course, New York and New Jersey are not alone in the
proliferation of elected-affiliated nonprofits. Soon after Illinois voters elected
Republican Bruce Rauner governor, two former campaign aides formed
“Turnaround Illinois,” a § 501(c)(4) to promote his legislative agenda.
48
In
43
. Id.
44
. See Salvador Rizzo, Committee Run by Christie’s Friends Praises His Budget in $1.2M
Ad, NJ.COM (Mar. 30, 2019), https://www.nj.com/news/2012/07/committee_run_by_christies_fri.
html.
45
. See, e.g., Max Pizarro, Committee for Our Children’s Future Undertakes $1.5 Million
Ad Campaign, OBSERVER (Sept. 20, 2011), https://observer.com/2011/09/committee-for-our-
childrens-future-undertakes-1-5-million-ad-campaign/.
46
. Erin O’Neill, PolitiFact N.J.: Committee for Our Children’s Future Runs Second Ad
Promoting Chris Christie, NJ.COM (Mar. 30, 2019), https://www.nj.com/news/2012/01/politifact_
nj_committe_for_our.html.
47
. See, e.g., Andrew Seidman, Dark Money Group Aligned with Gov. Phil Murphy Finally
Discloses Donors, PHILA. INQUIRER (Sept. 12, 2019), https://www.inquirer.com/news/phil-
murphy-dark-money-new-direction-nj-disclose-donors-20190912.html; Charles Stile, ‘Dark
Money’ Politics Shadows Gov. Phil Murphy Despite His Call to Make Donor Names Public,
NORTHJERSEY.COM. (Jan. 7, 2019), https://www.northjersey.com/story/news/columnists/charles-
stile/2019/01/07/murphy-faces-nj-dark-money-problem-over-secret-donors/2482953002/; Matt
Friedman, Murphy: Group Run by My Campaign Advisers Should Disclose Its Donors, POLITICO
(Jan. 4, 2019), https://www.politico.com/states/new-jersey/story/2019/01/04/murphy-group-run-
by-my-campaign-advisers-should-disclose-its-donors-773033.
48
. See Monique Garcia, Aides Form Super PAC to Promote Illinois Governor’s Agenda,
GOVERNING (Apr. 21, 2015), https://www.governing.com/archive/aides-form-super-pac-to-
promote-illinois-governors-agenda.html.
600 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
Maryland, Governor Larry Hogan has been actively raising money for Change
Maryland, a non-profit intended “to build support for Hogan’s second-term
goals” including anti-tax messaging, his education plan, and redistricting
reform.
49
Hogan’s fundraising letter for the organization indicated that donors
could expect their money to be “spent to direct the public to call, email, crowd
hearing rooms, and put pressure on their legislators.”
50
Unlike the other
§ 501(c)(4)’s discussed so far, Hogan’s initiative was launched long after he had
already won re-election to his second and—due to term limits—final term. For
that very reason, as a state election official acknowledged, campaign finance
rules did not apply to the group, despite Hogan’s undisputed connection to it,
because Hogan was not running for office.
51
It would be tedious to go through every elected-official-affiliated
nonprofit, even when limited just to those connected to governors. A study by
the Citizens for Responsibility and Ethics in Washington (CREW) found that
nineteen governors in office at the start of 2017 could be linked to thirty such
supportive committees.
52
Excluding those that appear to have electoral as well
as policy goals or a connection to an election campaign, the group found
seventeen governors had ties to twenty-four groups created to support their
policy agendas.
53
As the study found, some governors were actively and
publicly involved with these supportive groups. A number of governors either
raised funds for the supportive groups,
54
or were featured in advertisements
paid for by the groups.
55
The organizations were typically run by friends, family
members, former campaign staff, or other close associates of the governor.
56
49
. See Erin Cox, Hogan Raising ‘Dark’ Money to Boost His
Agenda, Stop Costly Education Plan, WASH. POST (Sept. 19, 2019), https://www.washingtonpost.
com/local/md-politics/hogan-raising-dark-money-to-boost-his-agenda-stop-costly-education-
plan/2019/09/19/d0bba432-d324-11e9-9343-40db57cf6abd_story.html.
50
. Id.
51
. Id.
52
. See MAYA GOLD, CITIZENS FOR RESP. AND ETHICS IN WASH., SHADOW
GOVERNORS: HOW NONPROFITS WITH ANONYMOUS DONORS INFLUENCE POLITICS AND POLICY IN
THE STATES 3 (2018).
53
. See id. at 8, tbl.1.
54
. See, e.g., id. at 20 (fundraising by Idaho Governor Otter and his wife for Education
Voters of Idaho, Inc.), 28 (Louisiana Governor Edwards spoke at fundraiser for Rebuild Louisiana),
43 (Montana Governor Bullock fundraised for Early Edge Action and spoke at a rally).
55
. See, e.g., id. at 22–23 (Illinois Governor Rauner appeared in an ad run by
Turnaround Illinois); 28 (Louisiana Governor Edwards appeared in an ad released by Rebuild
Louisiana in support of his budget plan).
56
. See, e.g., id. at 12 (Alabama Council for Excellent Government founded by
Governor Bentley’s former legal adviser), 17 (Georgia Leads, Inc. run by someone previously in
Governor Deal’s office), 26 (in Kansas, president of Road Map Solutions was Governor
Brownback’s former chief of staff, and group’s director was the Governor’s campaign treasurer),
30 (Governor LePage’s daughter was executive director of Maine People Before Politics from
2015–2017), 39 (A New Missouri was founded by Governor Greitens’ campaign finance director
and campaign treasurer; executive director was the Governor’s sister-in-law); 62 (principal staff of
2021] ELECTED-AFFILIATED NONPROFITS 601
In other words, just as in electoral politics a candidate’s formal campaign
committee is frequently accompanied and bolstered by the work of independent
Super PACs and dark money groups not subject to the rules applicable to the
candidate’s personal campaign committee, many governors now pursue their
policy agendas with the support of “shadow” advocacy nonprofits.
57
Two of
these groups—in Alabama and Missouri—were caught up in the misconduct of
their governors, who ultimately resigned.
58
But the real issue for most of these
groups is not what is illegal but what is legal: the lack of mandatory disclosure
of their donors and the lack of any restriction on the solicitation or receipt of
contributions from individuals or organizations who have interests before the
state that the governor has the authority to affect. Some of these groups have
voluntarily disclosed some of their donors, but the timing and contents of
disclosure have been highly variable.
59
It does not appear that any have taken
any significant voluntary steps to limit the potential for pay-to-play donations.
B. Service-Delivery Charitable Organizations
The nonprofit elected-affiliated groups discussed so far are, for federal tax
purposes, § 501(c)(4) “social welfare” organizations, which can engage in
public advocacy, such as lobbying for or against legislative or regulatory
proposals, as well as a limited amount of electoral activity. These are the
organizations that elected officials have turned to when they want their allies to
raise funds to mount advocacy campaigns to support their legislative agendas.
Due to their ability to undertake public political advocacy with unlimited and
undisclosed donations, they resemble the dark money groups that have come to
play a growing role in elections. There is another category of elected-affiliated
groups less focused on policy and politics that has drawn less attention and less
controversy, but that still provide donors an opportunity for undue influence.
Many officials, particularly at the local level, have created § 501(c)(3)
charitable nonprofits to raise contributions to supplement the kinds of programs
that their governments provide. At a time when many local governments are
facing financial difficulties, such organizations provide a way to tap into private
philanthropy to support public services. This is the model provided by the many
“mayor’s funds”—such as the Mayor’s Fund to Advance New York City,
60
the
Mayor’s Fund for Los Angeles,
61
the Mayor’s Fund for Philadelphia,
62
the Long
Tennessee Business Partnership came from public relations firm closely connected to Governor
Haslam).
57
. Id.
58
. Id. at 3, 5, 12–14, 41–42.
59
. Id. at 6–7.
60
. See About the Fund, MAYOR’S FUND TO ADVANCE NEW YORK CITY,
https://www1.nyc.gov/site/fund/about/about.page (last visited Mar. 7, 2021).
61
. See MAYOR’S FUND FOR LOS ANGELES, https://mayorsfundla.org/home/ (last
visited Mar. 7, 2021).
62
. See Who We Are, THE MAYOR’S FUND FOR PHILADELPHIA,
http://www.mayorsfundphila.org/about/who-we-are/ (last visited Mar. 7, 2021).
602 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
Beach, California’s Mayor’s Fund for Education,
63
the Mayor’s Fund for Las
Vegas Life,
64
and similar organizations around the country.
65
These Funds
typically operate as public-private hybrids, with connections to both city
government and the private sector. The degree of direct mayoral involvement
in fundraising for and the operations of these funds may vary. Some are housed
in the mayor’s office and receive staff or office spaces from city government,
while others are under the direction of relatively independent boards with just a
limited number of mayoral appointees. In New York City, the Mayor’s Fund
has a place on the City’s website; the chair of the board of directors is the
mayor’s spouse,
66
and the mayor has been publicly associated with its activity.
67
In Los Angeles, Mayor Eric Garcetti “frequently namechecks the Mayor’s Fund
for Los Angeles, which has assumed a major role in the city’s response to the
coronavirus pandemic.”
68
These funds no doubt often do valuable work. By August 2020, the Los
Angeles Fund had provided $56 million in aid for COVID relief projects,
including home meal delivery for seniors, childcare for hospital workers, and
shelter and services for domestic violence survivors.
69
The New York City
63
. See About MAYOR’S FUND FOR EDUCATION, http://mayorsfundfored.org/ (last
visited Mar. 7, 2021).
64
. See About the Fund, MAYOR’S FUND FOR LAS VEGAS LIFE,
https://mayorsfundlv.org/About-the-Fund (last visited Mar. 7, 2021).
65
. Many such “funds” operate on a sub-municipal basis, created by and supporting a
specific local agency. In New York City, for example, there is a Fund for Public Housing, created
in 2016 to provide financial support for the New York City Housing Authority. See About Us, FUND
FOR PUBLIC HOUSING, https://www.fundforpublichousing.org/(last visited Mar. 7, 2021); a Fund
for Public Schools, to support the City’s Department of Education. See Our Mission, FUND FOR
PUBLIC SCHOOLS, https://www.fundforpublicschools.org/mission (last visited Mar. 7, 2021); and,
at the borough-level, the One Brooklyn Fund created by the borough president of Brooklyn to
“promote[] collaboration and engagement among Brooklyn’s diverse communities through events,
programs, and services.” See ONE BROOKLYN FUND INC., https://onebrooklynfund.org/ (last visited
Mar. 7, 2021). Local elected officials may be closely affiliated with these entities as well. See, e.g.,
Sanders, supra note 24 (skirting campaign finance rules in quest for City Hall).
66
. See Board Leadership, MAYOR’S FUND TO ADVANCE NEW YORK CITY,
https://www1.nyc.gov/site/fund/about/board-leadership.page (last visited Mar. 7, 2021).
67
. See Laura Nahmias, Mayor’s Fund Raised $25M in Fiscal 2016, POLITICO,
https://www.politico.com/states/new-york/city-hall/story/2016/07/mayors-fund-raised-25-million-
in-2016-fiscal-year-104078 (July 21, 2016, 5:32 AM).
68
. Aaron Mendelson, $42 Million and Counting: Mayor’s Nonprofit Plays Major
Role in Pandemic Response, LAIST, https://laist.com/2020/05/11/mayors-fund-eric-garcetti-
donors-database.php (May 11, 2020, 6:00 AM). Accord City News Service, Two LA COVID-19
Initiatives Reach Funding Goals, Mayor Says, NBC LOS ANGELES, https://www.nbclosangeles.co
m/news/local/two-la-covid-19-initiatives-reach-funding-goals-mayor-says/2492518/ (Dec. 23,
2020).
69
. See City News Service, LA Mayor’s Fund Raises $56 Million to Help Those Hit
by Coronavirus Outbreak, LOS ANGELES DAILY NEWS, https://www.dailynews.com/2020/08/12/la-
mayors-fund-raises-56-million-to-help-those-hit-by-coronavirus-outbreak (Aug. 12, 2020, 12:18
PM).
2021] ELECTED-AFFILIATED NONPROFITS 603
Fund has supported mental health services and youth employment;
70
the Las
Vegas Fund has taken on a range of initiatives including homelessness, youth
sports, and public art.
71
As § 501(c)(3) organizations they can engage in only a
limited amount of public advocacy and no electioneering, so they likely provide
less of a boost to the mayor’s public image or political success. Yet, to the
extent that the mayor is closely associated with the fund, and especially if the
mayor solicits contributions for it,
72
donations to these funds—which typically
are not subject to any dollar limits or to public donor disclosure requirements—
can be another way individuals or organizations that do business with a city can
establish a positive relationship with a mayor. As one donor to the Los Angeles
mayor’s fund explained, not only did he support the fund’s programmatic goals,
but “he also saw the gift as a way to forge bonds with Garcetti.”
73
Even if the
fund doesn’t undertake quasi-electoral campaigns in support of a mayor’s policy
initiatives, any favorable publicity that accompanies a fund’s work can benefit
the mayor’s popularity and political fortune as well. As a result, even
§ 501(c)(3) funds, notwithstanding the good work they often do, can be a source
of potential pay-to-play concern.
74
III. CLOSING THE PUBLIC INTEGRITY GAP
A. Gifts, Campaign Contributions, and Elected-Affiliated Organizations
A central concern of government ethics is the provision of a private benefit
to a public servant in exchange for an official action that benefits the donor. An
exchange that involves an intentional quid pro quo can be prosecuted as a bribe.
Many ethics laws go beyond bribery to proscribe or limit gifts in which there is
no actual quid pro quo due to the real possibility that gifts may subtly influence
the public servant’s official decision-making, or appear to do so. Gifts provided
even without strings attached may cause a grateful public servant to be more
favorably disposed to his or her benefactor’s interest in a government action the
public servant can affect. So, too, the acceptance of gifts or comparable benefits
can create an appearance of favoritism that undermines public confidence in
70
. See About the Fund, MAYOR’S FUND TO ADVANCE NEW YORK CITY, supra
note 60.
71
. See Priorities & Initiatives, MAYOR’S FUND FOR LAS VEGAS LIFE,
https://mayorsfundlv.org/Programs-Initiatives (last visited Mar. 7, 2021).
72
. See Aaron Mendelson & Mary Plummer, ‘A Tricky Area of Philanthropy’: LA
Mayor Solicits Millions for His Favored Causes, S. CA. PUB. RADIO, https://www.scpr.org/news/
2017/08/23/74917/la-mayor-garcetti-behested-payments/, (Aug. 23, 2017).
73
. See Peter Jamison et al., Eric Garcetti’s Mayor’s Fund Lets Companies Give Big,
L.A. TIMES, https://www.latimes.com/local/cityhall/la-me-0303-garcetti-fund-20150303-
story.html (Mar. 3, 2015).
74
. See Rich Calder, Feds Probe Eric Adams’ Non-Profit Over Donor Favor Claims,
N.Y. POST, https://nypost.com/2016/08/08/feds-probe-eric-adams-non-profit-over-donor-favor-
claims/ (Aug. 8, 2016) (federal investigators probing fundraising activities of the One Brooklyn
Fund, Inc., created by Brooklyn Borough President Eric Adams to advance his summer concert
series and other projects).
604 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
government. By prohibiting gifts in circumstances in which a reasonable person
would infer that the gift could influence official decision-making, ethics rules
can deter both actual corruption and undue influence short of criminal
misconduct, and thereby promote the integrity of government and public
confidence in government integrity.
Campaign contributions are the exception that prove the rule. They clearly
provide a benefit to the candidate who receives them who, if he or she wins
office, will be in a position to reward the donor. That may very well be a reason
for the donation. But in a democracy in which campaigns cost money, there is
minimal to no public funding of campaigns, and elective office needs to be open
to candidates who do not have the means to fund their campaigns out of their
own resources, campaign contributions are essential, and protected by the First
Amendment.
75
The tension between banning gifts and permitting campaign
contributions is to some degree mitigated by campaign finance laws that require
campaign contributions to be: (i) donated to a legally distinct campaign
committee; (ii) publicly reported and disclosed; and (iii) limited in amount.
Some jurisdictions go further and adopt so-called “pay-to-play” restrictions that
more tightly limit or bar contributions from individuals or entities that do
business or seek to do business with, or are subject to regulation by, the office
that the candidate is seeking. In addition, to prevent campaign contributions
from subverting a gift ban, campaign finance laws typically bar the “personal
use” of campaign funds.
76
As described in Part II, contributions to elected-official-affiliated
nonprofits fall into a gap between ethics regulation and campaign finance law.
Gift bans focus on the provision of “things of value,” which, even when broadly
defined, are still limited to things that provide some kind of pecuniary benefit
to the official, a family member, or someone comparably associated with the
official. Contributions to affiliated committees surely involve things of value
but they are not given “to” the official, but to a legally separate entity for policy
advocacy or charitable purpose. If a particular donation winds up in the
official’s bank account (or pays for a luxury vacation), that could be a violation
of the jurisdiction’s ethics law. But there is likely no problem under a traditional
ethics law with donations given and used for advocacy or charitable purposes
by organizations affiliated with the official.
So, too, these donations do not support electioneering. The policy
advocacy nonprofits are often created and initially funded after an election,
when the official is preparing to, or has just taken office, and sees the need for
a well-funded public campaign to overcome the political obstacles to the
enactment of his or her legislative agenda. Others may be used by a
75
. A campaign contribution tied to an express quid pro quo for favorable government
action can be prosecuted as a bribe. See McCormick v. United States, 500 U.S. 257, 273–74 (1991);
cf. United States v. Ring, 706 F.3d 460 (D.C. Cir. 2013) (campaign contribution found to be illegal
gratuity).
76
. See, e.g., 52 U.S.C. § 30114(b).
2021] ELECTED-AFFILIATED NONPROFITS 605
term-limited incumbent unable to seek re-election.
77
As for the charitable
service-delivery nonprofits, federal tax law requires them to avoid political
advocacy work.
In some states, lobbying laws may require the public advocacy committees
to report their expenditures. But some jurisdictions define lobbying narrowly
to exclude the kind of “grassroots lobbying”—radio, television, social media
advertising, mailers, and robocalls—that target the general public rather than
the legislature directly.
78
In those jurisdictions, the advocacy committee would
likely be exempt from reporting requirements. Moreover, even in jurisdictions
whose lobbying laws cover grassroots advocacy, disclosure requirements are
often limited to just the reporting of expenditures. A few jurisdictions go further
and require the disclosure of the identities of the individuals or organizations
funding the lobbying campaign and the sums that the donors provided, but many
do not.
79
In those situations, the public knows only that some group with an
anodyne name like the “committee for good government” funded the advocacy
activity, but they have no idea who is funding the “committee for good
government.” Moreover, even when lobbying laws provide some transparency
concerning the size and sources of the donations funding the public advocacy
lobbying, they do not impose limits, even on donations from individuals or
organizations that do business with the government lobbied.
80
As a result,
lobbying laws at best fill the public integrity only partially. Laws that require
both donor transparency and limits on potential pay-to-play donations are
necessary to close the integrity gap.
B. Establishing Transparency and Contribution Limits for
Elected-Official-Affiliated Organizations
New York City, which acted in the aftermath of the CONY episode,
provides one model of how to do this. The New York measure, adopted by the
City Council in late 2016 and modified in 2019, has three elements.
First, any “organization[] affiliated with an elected official” must annually
submit a publicly available report about itself, indicating the names of its
principal officers and board members, the elected official with which it is
affiliated, and the names of any individuals or entities that donated $5,000 or
more to the organization in the previous calendar year.
81
There is a potentially
very open-ended exception from donor disclosure for “a donor who does not
wish to have their identity made public.”
82
For such $5,000+ donors, only the
dates and amounts of their donations need be disclosed. In addition, if the
reporting entity provides persuasive evidence that disclosure would “cause
77
. Cox, supra note 49.
78
. See, e g., Richard Briffault, The Anxiety of Influence: The Evolving Regulation of
Lobbying, 13 ELEC. L.J. 160, 186–90 (2014).
79
. Id.
80
. Id. at 165.
81
. See N.Y.C. ADMIN. CODE § 3-902(b) (2021).
82
. Id. at § 3-902(b)(7).
606 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
harm, threats, harassment, or reprisal[] to the donor, or to individuals or property
affiliated with the donor,” the name of such a donor shall not be publicly
disclosed.
83
It is not clear if the anti-harassment exception is intended to limit
the bases for a donor or entity to seek exemption from disclosure or whether the
law provides two separate bases for exceptions from disclosure.
84
If the latter,
then the donor disclosure “requirement” begins to look voluntary.
The real bite of the law is its second part, which addresses so called
“restricted” organizations, defined as “organizations affiliated with an elected
official” that “spend or reasonably expect to spend at least 10% of the
expenditures in the current or next calendar year on the production or
dissemination of elected official communications.”
85
“Elected official
communications,” in turn, consist of communications via broadcast, print,
telephone, or paid internet advertising that include the name, voice, or likeness
of the elected official with which the organization is affiliated.
86
These
“restricted organizations” may not accept donations in excess of $400 a year
from any person who does business with the City, and may accept donations
only from natural persons.
87
These restrictions track the “doing business”
restrictions on donations to candidates for City office under the City’s campaign
finance law. The City maintains a database of organizations “doing business”
with the City, which determines which donors are subject to the restriction.
Third, the law defines what it means for an organization to be “affiliated”
with the elected official. For some organizations that will be relatively
straightforward. If an organization is incorporated as the “mayor’s fund” it is
not a great stretch to determine that it is affiliated with the mayor. But for many
organizations—like CONY—the relationship is less formal. The New York
City law focuses on whether a city elected official or an agent or appointee of
the elected official “exercises control” over the organization. It then sets out a
multi-factor test for the City’s Conflicts of Interest Board (COIB) to apply to
determine whether the official exercises control. These include: whether the
organization was created by the elected official or an agent of the official, or by
an individual who was previously employed by, or was a paid political
consultant of, the elected official; whether the organization is chaired by the
elected official or an agent of the official; “the degree of involvement or
direction by the elected official in such organization’s policies, operations, and
activities,” and “such other factors” as the COIB shall determine by rule.
88
83
. Id. at § 3-902(c)
84
. The relevant City Council committee report is silent on this point. GENERAL
COUNSEL & COMM. ON STANDARDS & ETHICS, COUNCIL OF THE CITY OF N.Y., REPORT INT. NO.
1272 (N.Y.C. 2018).
85
. N.Y.C. ADMIN. CODE § 3-902(a).
86
. Id. at § 3-901. The definition exempts communications with journalists or news
media staff; communications to the members of the organizations; or communications in connection
with a debate, town hall or forum in which more than one candidate or proponents of two or more
sides of an issue are invited to participate.
87
. Id. at § 3-903.
88
. Id. at § 3-901.
2021] ELECTED-AFFILIATED NONPROFITS 607
This is, of course, extremely open-ended, and mixes relatively objective
factors like whether the organization was created by former staff of or political
consultants to the elected official, with the more indeterminate “degree of
involvement” of the elected official in the organization’s policies, operations,
and activities. To be sure, the elected official’s “degree of involvement” is a
crucial factor. But it is hard to assess—both quantitatively (how much is the
official involved?) and qualitatively (how much involvement is needed to
establish affiliation?)—in tandem with the other factors.
The definition of “affiliation” would benefit from more concreteness. The
personnel used to establish an affiliation between the elected official and the
organization could be expanded to include members of the elected official’s
family. The definition of former employees could be clarified to confirm they
include employees from both the elected official’s government position and his
or her former election campaign.
89
Looking to the federal regulations that
define whether a political committee is coordinating its efforts with a campaign
committee, the law could also treat as evidence of affiliation the sharing of
consultants or commercial vendors between the advocacy committee and any
campaign committee of the elected official.
90
“Degree of involvement” could also be concretized by treating solicitation
of funds for the organization, speaking at fundraising events even if the elected
official avoids “making the ask,” or otherwise promoting donations to the
organization as presumptive evidence of affiliation. Similarly—borrowing
again from the federal rules defining coordination
91
—if the elected official is
involved in the advocacy organization’s decisions concerning the content,
means, timing, or audience for its public communications that should also
require a finding of affiliation.
The Brennan Center for Justice has put forward a slightly different
template for the determination of affiliation. It proposes a two-part test to
determine whether an organization is affiliated with an elected official:
(i) whether there is a “structural affiliation” based on factors similar to the ones
cited by the New York City law, and (ii) whether the organization spends a
“significant portion of its resources (exact amounts would vary by jurisdiction)
on public communications containing the name or image of that elected
official.”
92
In other words, public communications by the organization
featuring an elected official would be part of the definition of whether the
organization is affiliated with the elected official, not, as in New York, the basis
for a restriction on donations to the organization. That has the advantage,
relative to the New York City law, of being more determinate. Unless the
organization is spending more than a certain amount—or, pace the New York
law, a percentage of its expenditures—on public communications featuring the
elected official, the question of whether the organization is affiliated with an
89
. See, e.g., N.Y. ELEC. L. § 14-701(1)(d); CAL. CODE REGS. tit. 2, § 18225.7(d).
90
. See 11 C.F.R. § 109.21.
91
. Id.
92
. See LEE ET AL., supra note 27, at 13.
608 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
elected official would not even arise. However, there would still be some
indeterminacy in assessing “structural affiliation,” which, as with New York’s
law,
93
relies on the relatively open-ended concept of whether the elected official
(or current or recent employee or advisor, or family member) “participates in
directing the work of the organization.”
94
Moreover, by eliminating coverage of organizations which, even if
structurally affiliated, do not devote significant resources to featuring the
elected official, the Brennan Center most likely exempts most of the “mayor’s
funds” and similar service-delivery affiliates. That is consistent with the
Brennan Center’s regulatory call for both disclosure and pay-to-play
contribution restrictions;
95
the New York City law requires only disclosure
for—and imposes no restrictions on donations to—organizations that do not
engage in advocacy featuring an elected official.
Although advocacy organizations probably present the greater danger of
serving as avenues for undue influence with elected officials, that danger may
also arise from donations to service-delivery charitable organizations affiliated
with elected officials or their appointees. Elected officials may engage in
fundraising for these organizations and have a stake in their success even if the
organizations do not engage in public advocacy. As a result, New York’s
approach of defining affiliation solely based on the existence of connections
between the elected official—or an agent or appointee of the official—and the
organization seems the better approach. Moreover, it may often be easier to
find the kind of relationship that indicates affiliation with many of the service
delivery nonprofits labeled “mayor’s fund” than for the advocacy nonprofits.
As previously noted, many of the service delivery nonprofits have some formal
tie to local government, whether in their name or through the appointment of
board members or staff. Thus, New York’s definition of affiliated organization
and its requirement for the disclosure of larger donations is the better one.
On the other hand, the provision of the New York City law that appears to
provide an easy opt-out from disclosure may undermine the transparency
requirement for non-advocacy affiliates. Exclusion from the disclosure of the
identities of larger donors should be limited to those that can make a showing
of a well-founded concern of harassment or reprisal, as the other provision of
the New York law authorizes.
But the benefit of the New York law is more in its approach than its
specifics. Service-delivery affiliated organizations should be required to
disclose their large donors. Advocacy nonprofits—defined by their featuring
an elected official in a significant fraction of their public communications—
should be required to disclose their donors and be barred from accepting large
donations from individuals or organizations that do business or seek to do
business with the elected official’s government. Affiliation can be established
by a mix of formal and informal connections between the elected official and
93
. N.Y.C. ADMIN. CODE § 3-901.
94
. LEE ET AL., supra note 27, at 12.
95
. Id. at 15–17.
2021] ELECTED-AFFILIATED NONPROFITS 609
the organization, including: the role of family members or past or present staff
or political aides or consultants in creating or running the organization;
fundraising and related activity by the elected official for the organization; and
involvement of the elected official in the development of the organization’s
public advocacy campaigns.
IV. CONSTITUTIONAL QUESTIONS
Laws imposing transparency requirements for, and dollar or source
limitations on, donations to organizations seeking to influence government
action implicate the freedom of association protected by the First Amendment.
As the Supreme Court has held, donor privacy safeguards unpopular opinions
and protects donors to unpopular groups from retaliation.
96
In so doing, privacy
protects those groups, too. The Court has also found that the First Amendment
protects the right to contribute to candidates and political committees. This is a
right of the individual to participate in the political process, and of the freedom
of association of groups that depend on donations for their ability to advocate
for candidates or causes on behalf of their supporters.
97
The Supreme Court has, however, also upheld disclosure requirements
and contribution restrictions as part of the regulation of elections and has
sustained transparency requirements for those engaged in lobbying. In the
elections context, the Court has found that disclosure serves the important
public interests in preventing corruption and its appearance, and in informing
the voters of the identities of candidates’ financial backers. That information
enables voters to “place each candidate in the political spectrum more precisely
than is often possible solely on the basis of party labels and campaign
speeches.”
98
As a result, disclosure promotes informed voter decision-making
and increases the likelihood that voters’ choices will reflect their electoral
preferences. Due to the importance of voter information to democratic
elections, the Court has treated campaign donor disclosure—including
disclosure to political party committees and to independent committees that
expressly advocate for or against candidates—as presumptively valid.
Exemptions may be available for donations to unpopular groups on an
as-applied basis, but the burden is on the group seeking an exemption from
disclosure to show that there is a serious risk their donors will be subject to
harassment or reprisal if their names are publicly revealed.
99
The Court has also determined that contribution limits can be a
constitutionally valid means of advancing the important governmental interests
in preventing corruption and the appearance of corruption. The Court has
explained that anti-corruption laws need not be “confined to bribery of public
officials, but extend[] to the broader threat from politicians too compliant with
96
. See, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995); Talley v.
California, 362 U.S. 60 (1960); NAACP v. Alabama, 357 U.S. 449 (1958).
97
. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976).
98
. Id. at 67.
99
. See, e.g., Brown v. Socialist Workers ’74 Campaign Comm. 459 U.S. 87 (1982).
610 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
the wishes of large contributors. These were the obvious points behind our
recognition that the Congress could constitutionally address the power of money
‘to influence governmental action’ in ways less ‘blatant and specific’ than
bribery.”
100
Lower courts have also affirmed the constitutionality of
“pay-to-play” contribution limits, that is, laws that set lower limits on or ban
contributions to candidates from individuals or firms that do business with or
are regulated by the office that the candidate is seeking.
101
Outside elections, the Supreme Court has sustained the constitutionality
of requiring lobbyists to disclose who is paying for their activities. In United
States v. Harriss,
102
the Court emphasized the important public interest in
knowing who is behind efforts to influence legislative action—to “know who is
being hired, who is putting up the money, and how much.”
103
Harriss, however,
dealt with a law that regulated only “‘lobbying in its commonly accepted
sense’—to direct communication with members of Congress on pending or
proposed federal legislation.”
104
There is a suggestion in Harriss’ footnotes that applying disclosure
requirements to money spent on efforts to persuade the public to communicate
with legislators as part of their efforts to pass or block legislation—what is now
generally referred to as “grassroots lobbying”—would be constitutional,
105
but
the Court did not address the issue and has not done so in the more than six
decades since Harriss was decided. Today grassroots communications are an
integral part of many contemporary lobbying campaigns.
106
There is the same
legislator- and public-information benefit to learning the identities of donors to
grassroots campaigns as there is to learning the identities of donors to lobbyists
who simply work the halls of the state capital. Nor is there any reason to believe
that donors to grassroots campaigns are any more at risk of harassment or
reprisal than donors to campaigns that engage solely in “lobbying in its
commonly accepted sense.”
107
Courts have sustained state laws that require
financial disclosures by committees active in ballot proposition campaigns.
108
Ballot committee campaigns to influence voter decisions whether or not to
approve proposed state laws or constitutional amendments closely resemble
grassroots lobbying to influence legislative action. To be sure, ballot measure
100
. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 389 (2000), (quoting Buckley,
424 U.S. at 28).
101
. See, e.g., Ognibene v. Parkes, 671 F.3d 174 (2d Cir. 2011), cert. denied, 567 U.S.
935 (2012); Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015), cert. denied sub nom. Miller v. FEC, 577
U.S. 1102 (2016); Schickel v. Dilger, 925 F.3d 858 (6th Cir. 2018), cert. denied sub nom. Schickel
v. Troutman, 140 S. Ct. 649 (2019).
102
. United States v. Harriss, 347 U.S. 612 (1954).
103
. Id. at 625.
104
. Id. at 620.
105
. See Briffault, supra note 78, at 171–72.
106
. Id. at 186–87.
107
. Harriss, 347 U.S. at 620.
108
. See, e.g., Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011); Hum.
Life of Washington, Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010).
2021] ELECTED-AFFILIATED NONPROFITS 611
campaigns do involve elections. Like other elections, they culminate at a
moment in time and yield a dispositive result for a specific issue, unlike
legislative lobbying, which is ongoing. But the informational value and threats
to privacy (or their lack) posed by the disclosure of the donors behind both ballot
proposition and grassroots lobbying campaigns are analogous.
Although state grassroots lobbying disclosure requirements are
widespread, lower courts have divided over the constitutionality of disclosure
requirements for grassroots campaigns aimed at influencing ordinary
legislation, and the issue remains unresolved.
109
Even with this uncertainty, the
case for requiring donor disclosure by elected-affiliated-advocacy organizations
is stronger by far than the case for the disclosure of grassroots advocacy donors
generally. For elected-official-affiliated advocacy committees, disclosure is
justified not only by the legislature’s—and public’s—interest in knowing who
is trying to influence legislative action, but by the public interest in knowing
who is trying to win an executive official’s gratitude. When an organization
that is established and operated by agents of an elected official, works to
promote the official’s agenda, prominently and positively features the official
in its public communications, and benefits from the elected official’s
fundraising or publicly-stated endorsement, it is likely that at least some of the
individuals and firms contributing to it are doing so with the hope, if not the
expectation, that their interests will be taken into account when they are or may
be affected by government action. The executive whose policy agenda benefits
from the support of such a donor may be influenced by the donation when it
comes time to make a decision that directly affects the donor’s interests. In this
context, to follow Brandeis’ metaphor, disclosure would be the best
“disinfectant”
110
—if not by reducing the likelihood that the donation will be
followed by some favorable governmental action, then by making it easier for
the media, watchdog organizations, or the public to determine when such a
sequence of events occurs and to assess its significance for the integrity of the
government’s action.
111
109
. Compare Fla. Ass’n of Pro. Lobbyists, Inc. v. Div. of Legis. Info. Servs., 525
F.3d 1073 (11th Cir. 2008) (sustaining regulation); Fla. League of Pro. Lobbyists, Inc. v. Meggs,
87 F.3d 457 (11th Cir. 1996) (same); Many Cultures, One Message v. Clements, 830 F. Supp. 2d
1111 (W.D. Wash. 2011) (same), aff’d in part, vac’d in part, Young Ams. for Freedom, Inc. v.
Gorton, 522 P.2d 189 (Wash. 1974) (same); with Citizens Union of New York v. Att’y Gen., 408
F. Supp. 3d 478, 503–08 (S.D.N.Y. 2019), Mont. Auto. Ass’n v. Greely, 632 P.2d 300 (Mont. 1981).
110
. LOUIS D. BRANDEIS, OTHER PEOPLE’S MONEY: AND HOW THE BANKERS USE IT
62 (Nat’l Home Library Found., Washington, 1933) (“Publicity is justly commended as a remedy
for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the
most efficient policeman.”).
111
. As this Article was going to press, the Supreme Court heard oral argument in, but
had not yet decided, Americans for Prosperity v Rodriquez, cert. granted sub nom. Americans for
Prosperity v. Becerra, 141 S. Ct. 973 (2021), and Thomas More Society v. Rodriquez, cert. granted
sub nom. Thomas More Society v. Becerra, 141 S. Ct. 974 (together “APF”), a pair of cases raising
the question of what is the standard of review applicable to a state measure requiring the disclosure
of the names and addresses of major donors to private nonprofit organizations, outside the electoral
context. Depending on what the Court decides, AFP could have implications for the disclosure
612 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
Much as the Supreme Court has treated expenditures by parties or political
committees that are coordinated with a candidate as the functional equivalent of
a contribution to a candidate and subject to the same rules as contributions,
112
contributions to a committee affiliated with an elected official should be treated
as contributions to the official. To be sure, they are not personal gifts or even
campaign contributions. Their benefit to the elected official is not to her
personal wealth or even directly to her electoral success. There may be a public
benefit from the program that the advocacy committee is supporting. But the
connection to the elected official, the public interest in knowing about it, and
the public concern over the potential for improper influence are all comparable
to both campaign contributions and personal gifts. Disclosure of donations to
elected-official-affiliated nonprofits advances the same values, and is justified
by the same concerns, as disclosure of campaign contributions or personal
gifts.
113
Contribution restrictions are a harder case. There is a jurisprudence of
lobbying disclosure but no tradition of limiting contributions to lobbying
organizations. Indeed, restrictions on lobbying would almost certainly be
unconstitutional.
114
So, the fact that these organizations advocate policy
changes would not justify limits on donations to them; to the contrary, their
policy advocacy is a powerful argument against such a limitation. Rather, the
case for contribution limits rests on the affiliation of the organization with an
elected official and the concern that the organization is a conduit of improper
influence from the donor to the officeholder. As the elected-official-affiliated
advocacy organizations are engaged in constitutionally protected public
communications in support of legitimate policy objectives—universal pre-K,
inclusionary zoning, civil service and public pension law changes, education
reforms, etc.—to be constitutional, any limitation on donations to these
organizations would have to be narrowly tailored to address only those
donations that pose the most serious danger of improper influence on
government action. That means that limits should be targeted on (i) large
donations, (ii) from donors who do business with the government or are in a
business subject to regulation by the government, and (iii) to an organization
requirements proposed by this Article. However, the disclosure requirements challenged in AFP
were broadly applicable and not narrowly tailored to organizations affiliated with elected officials.
Whatever the standard of review for disclosure requirements, the government interest in disclosure
would surely be strong for organizations affiliated with elected officials, and tailoring proposed in
this Article would minimize the burden on First Amendment rights.
112
. See, e.g., FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001).
113
. Professor Stephanopoulos also argues that disclosure is an appropriate and
constitutional means for regulating “quasi campaign finance.” See Stephanopoulos, supra note 25,
at 405–08.
114
. Professor Stephanopoulos is extremely skeptical about contribution limits as a
means of regulating “quasi campaign finance.” Id. at 398–401. He thinks they are unlikely to be
effective and emphasizes their “sheer novelty. There is no modern American tradition of restricting
nonelectoral, yet still political, speech. To the contrary, the Court has a consistent record of striking
down such constraints.” Id. at 401.
2021] ELECTED-AFFILIATED NONPROFITS 613
affiliated with an elected official who is in a direct position to help or hinder the
donor’s business with or regulation by the elected official’s government. Such
a contribution limit focused on significant pay-to-play donors has the best
chance of passing constitutional muster, and ought to do so.
As the Supreme Court explained in the campaign finance context, the
burden contribution limits place on the First Amendment rights of donors is
partly ameliorated by the donors’ freedom to engage in unlimited independent
spending. In this context, too, any donors required to limit their contributions
to the affiliated advocacy committee would still be free to spend as much as
they want on their own in support of the policy program of the affiliated
committee. The limit, thus, would function not as a limit on constitutionally
protected policy advocacy, but solely as a restriction on pay-to-play
contributions to an organization closely affiliated with an elected official from
donors with business interests subject to that official’s decision-making.
115
As
in New York, the level of the contribution limit ought to be modeled on the
contribution limit for campaign donations. This underscores the connection
between the anti-undue-influence justifications behind both sets of restrictions.
Some pay-to-play donors surely support an affiliated nonprofit not because they
support the nonprofit’s policy agenda, but as a means of circumventing
campaign finance limits on donations directly to the elected official. Preventing
the circumvention of constitutional contribution limits is a constitutionally
acceptable justification for further contribution restrictions that are narrowly
tailored to avoid unduly burdening protected political activity.
116
The last proposed requirement—disclosure of donations to affiliated
service-delivery nonprofits—may also be tricky to justify as these organizations
are not engaged in the kinds of efforts to influence legislation that provide some
of the justification for regulating advocacy organizations. Their donors are
engaged in the type of philanthropy that is not ordinarily subject to public
disclosure. The basis for requiring disclosure of the significant donors to these
organizations, thus, is not the type of activity their contributions are financing,
or even the fact of their support for such work, but the concern that their
donations are a backdoor means of seeking to influence elected officials. As
discussed in Part II, there is evidence some donations have been made as a
means of establishing a relationship with the public official whose work the
organization supports. This is particularly likely when the official is actively
engaged in fundraising for the organization or when the organization is closely
identified with the official, such as when the official has a role in naming the
organization’s board, providing it with staff, giving it a place on a governmental
website, or publicly celebrating the organization’s support for local
115
. Id. Professor Stephanopoulos sees the ability of dollar-limited donors to switch
to other means of influencing public policy as a serious weakness for contribution limits rather than,
as I have suggested, a basis for arguing that the burden on constitutionally protected rights is a
limited one. Moreover, his central concern is with the ability of interest groups to achieve the public
policy goals their money is being used to advance rather than the potential for such donations to
win the gratitude of the elected official affiliated with the donor organization.
116
. See McConnell v. FEC, 540 U.S. 93, 185 (2003).
614 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 35:2
governmental programs. Public disclosure of the major donors to the
organization provides the transparency necessary for determining whether
support for the organization has become a conduit for influencing the elected
official affiliated with the organization.
As the Supreme Court has noted in the campaign finance setting,
disclosure is the least intrusive form of regulation. It does not prevent anyone
from supporting an organization or operate to limit the level of support.
117
If
disclosure of a donation from an unpopular donor or to an unpopular program
creates a serious risk of harassment or reprisal, the donor is constitutionally
entitled to an exemption from public reporting.
118
To assure that the disclosure
requirement is narrowly targeted at only those donations that raise the prospect
of improper influence on the government decision-maker affiliated with the
organization, only large donations or only donations from donors who do
business with the affiliated official’s government—or, even more narrowly,
only large donations from such pay-to-play donors—should be subject to
disclosure. That ought to achieve the balance between informing the public
about who is spending money in a manner that could affect government
decision-making, while minimizing both the intrusion on donor autonomy and
the administrative burden on the affiliated service-delivery nonprofit.
119
CONCLUSION
The emergence of elected-official-affiliated nonprofits has taken
advantage of—and highlighted—a gap in our public integrity laws. Donations
to these organizations neither enrich these elected officials personally, nor
contribute to their electoral fortunes in a manner that our campaign laws can
reach. Although they support potentially valuable—and constitutionally
protected—public advocacy campaigns and service delivery programs,
donations to these organizations provide an opportunity for individuals, firms,
and interest groups to obtain improper influence with the elected officials
affiliated with them and whose policies and initiatives they were created to
support.
The public integrity gap can be closed by first, examining the basic
elements of some of the most prominent of these organizations to determine
when a public-advocacy or service-delivery nonprofit can be said to be affiliated
with an elected official, and then, extending some of the basic tools for
promoting public integrity—transparency requirements and donation
restrictions—to this new public integrity frontier. The definition of “affiliated”
for the public-advocacy nonprofits may be a little tricky since the links between
the official and the relevant committee are likely to be informal, particularly
when compared to the more formal mayor’s fund type of service-delivery
117
. Citizens United v. FEC, 558 U.S. 310, 366 (2010).
118
. See Brown v. Socialist Workers ’74 Campaign Comm. 459 U.S. 87 (1982).
119
. The constitutional analysis of the disclosure proposed here may also be affected
by the Supreme Court’s resolution of Americans for Prosperity v. Rodriquez, discussed supra in
note 111.
2021] ELECTED-AFFILIATED NONPROFITS 615
nonprofits. But the proliferation of affiliated advocacy committees over the last
decade 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, for the advocacy committees, limitations on
pay-to-play donors are constitutionally appropriate mechanisms for doing so.
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