Opinion
OPINION: Warnings against restricting campaign donations
Matt Hemmert | Lehi Free Press
On Aug. 7, the Highland City Council approved a municipal code update restricting the monetary amount landowners contribute to a candidate if a landowner has a land use application pending or filed within one year of an election. When triggered, this limits a donation to a certain amount, with an obligation for a candidate to refund any excess money. The city can levy other penalties against any candidate for uncured infractions.
This code change may look good on paper, but Highland has stepped onto a very slippery slope. The U.S. Supreme Court recognizes an individual’s or company’s First Amendment right to donate money to political campaigns. Highland is now regulating First Amendment speech based on whether or not an individual or company is or has engaged in two legal activities within a specific timeframe.
Can the City do this? Yes, it can. It also appears Highland is happy to defend it. But the real question is whether they should have done it. And a follow-up question: Does the code update really accomplish its intended purpose?
Campaign finance laws aim to ensure transparency, accountability and fairness. Constituents may look at campaign financial disclosures to see who and what supports a candidate. These laws are also meant to encourage ethical behavior in those we, the electorate, wrap with the mantles of power and authority to make decisions on our behalf.
I think Highland’s code update is a step in the wrong direction.
The city implies that individuals and companies, based on their one-time or continuous involvement in the city’s land use application process, desire to buy favors from successful candidates to whom they’ve donated. This ties directly to a false narrative often seen and heard by opponents of development: anyone who wants to do something with their land will try to game the system.
Highland’s code change also implies that elected officials make decisions based on campaign contributions. I’d be naïve to claim that all elected officials in every city in every state operate on the principle of high-octane ethics. But it’s been my experience, including seven and a half years as an appointed land use commissioner, that city councils are thoughtful and mindful of their oath of office. I neither saw nor heard of any favoritism to any applicant who was also politically active vis-à-vis a donation.
The city further implies that there may have been undue influence on Highland City Council members due to campaign contributions made by land use applicants. I’m happy to be corrected, but I can’t find any hint of past wrongdoing other than the tired public clamor of “lining their pockets with developers’ money” when a land use decision isn’t popular with a few vocal opponents.
Additionally, the city implies that opponents to a particular land use application, long-term land use plans or development in general don’t contribute money to political campaigns. This is just not the case. I’ve seen sizable financial support given to local candidates by those with particular development agendas. Highland’s ethical dragnet will miss these large fish.
It is easy to find ways around the code update. Any alleged favor-seeking money will find a way to a campaign regardless of any law, regulation or rule. Companies can just have stakeholders donate individually or have a sister company donate. Resident landowners can have spouses donate. There are dozens of ways around the code. Who will map every land use application against every campaign donor during the practical timeframe? And who will peel back layers of potential obfuscation?
This code update may also have a chilling effect on Highland residents and companies. A resident or company could reasonably decide not to risk public scrutiny and to stop availing themselves of their First Amendment rights. Any well-meaning campaign contribution that triggers the refund mandate must be part of an amended disclosure, which will carry an insinuation of contributor wrongdoing.
Elected officials often pass “feel-good” and “look-good” regulations. We see this as cities hit the “cause du jour” without enforcement mechanisms. That’s flashy veneer work that generally looks good but accomplishes nothing.
Highland’s veneer work, however, abuts brinkmanship, perpetuates conjecture and isolates and targets people and companies contextually. There is no evidence of a widespread ethical illness in Highland as an underlying government interest justifying this restriction on First Amendment rights—just the age-old rumor mill. Highland is leaning on constitutionally protected rights without making a case to justify it. That’s the slippery slope, and there isn’t any grading permit that can fix the angle.
Highland City Council’s discussion centered around campaign finance transparency and its importance in informing an electorate. Applicable laws already require transparency in campaign finance. In my opinion, Highland’s code update does not and will not increase campaign finance transparency. It will disincentivize it and alienate some city residents and companies, both large and small.
I urge Lehi’s elected officials to be thoughtful and intentional before considering any similar code update.
