When you write a check to support a candidate’s political campaign, you have a general expectation as to how the money will be spent. You anticipate the candidate using an election account to buy signs, make commercials, hire staffers, and even buy tickets to fundraisers or pick up coffee and donuts for volunteers. When you donate to a candidate you have faith in, one you want to see in an elected position, the odds are that one thing you do not expect, or want, your money to be spent on is a criminal lawyer. However, this use of campaign funds has been considered in New Jersey of late, as more than one New Jersey elected official has faced indictment and found himself scrambling to rally the funds necessary to mount a legal defense.
The disconnect between campaign supporters’ and donors’ intent when they contribute money and those earnest supporters’ contributions paying for corrupt politicians’ criminal defense underlies the New Jersey Supreme Court decision that elect account funds cannot be used to fund a criminal defense. Under state law, campaign contributions can be used for six categories of expenses, including “ordinary and necessary expenses of holding office.” The Court’s ruling unanimously upheld a New Jersey Election Law Enforcement Commission decision prohibiting New Jersey State Senator Wayne Bryant from using the funds to defend against corruption and fraud charges — a use his lawyers claimed was a “necessary expense.” Justice Albin’s opinion explained, “The vast majority of elected public officials carry out their duties honestly and honorably and will not, in the course of their long careers, be the target of a criminal prosecution…[c]ontributors do not expect that their candidate’s election will be a stepping stone to a criminal indictment.” As such, the Court considered enforcing this limitation an essential step toward “restoring [public] confidence in our electoral system.”
This decision has had wide-ranging effects, raising questions across the state about what political campaign donors are really supporting when they make a contribution, as well as how elected officials can afford to defend themselves when criminal charges are filed.
In August, a New Jersey Superior Court Judge held that former Newark Mayor Sharpe James violated state campaign finance law by using $94,000 from his campaign accounts to mount his defense against federal fraud and conspiracy charges. James had minimal cash assets, and a loss at trial meant that he was no longer eligible to run for office. This holding raised questions as to why those funds could not be used to protect his political career, since they couldn’t be used to support a campaign he isn’t allowed to undertake if convicted.
Trenton Mayor Tony Mack‘s recent arrest on federal bribery charges raises similar questions about his ability to afford his legal bills. Mack has a history of financial difficulty, facing foreclosure on multiple properties and falling behind on paying his federal income tax. What he does have, however, is at least a $50,000 campaign account earmarked for his 2014 re-election bid. This campaign account has been accessed for a variety of personal expenses, food, and gasoline over the past year; but in the wake of the James trial, of the New Jersey Election Law Enforcement Commission reiterated that Mack is unable to tap into campaign accounts to fund his legal defense.
Meanwhile, in Hamilton, New Jersey, Mayor John Bencivengo awaits trial on charges he accepted $12,400 in bribes from a school health insurance broker. As he endeavors to raise the money needed to defend against these charges, using campaign funds has again come up, and, as a result of the rules against such use, he has instead pursued additional fundraising to establish a legal defense fund. Some donors are now contributing a second time to this defense fund while their earlier donations sit dormant in a campaign account. This issue highlights a dichotomy between the presumed wants and expectations of the public and donors’ actual preferences. The result may illuminate a shortcoming in the current rule.
Although each of these cases raises questions regarding the implementation of the state’s prohibition on the use of campaign funds for criminal defense—issues that cross county and political lines—the rule nonetheless reflects a positive shift in New Jersey’s approach to accountability. The prohibition demonstrates the state’s commitment to restoring the public’s faith in the election process. It also reminds us all to think carefully about what is being done with the money we give our perfectly imperfect candidates as elections and administrations come and go.