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Certain dark money donors will be revealed, people and companies can write bigger checks to candidates and parties they support in elections, contractors will have more chances to donate to politicians, and the governor will wield more power over the watchdog agency that oversees elections after Gov. Phil Murphy signed the jampacked, controversial Elections Transparency Act into law on Monday.
The three commissioners of the New Jersey Election Law Enforcement Commission — which monitors money in politics at all levels of elections in the state — resigned hours after the Legislature sent the bill to Murphy’s desk, warning the governor that the bill would “largely gut ELEC” and “render it unable to further its missions of transparency and accountability.”
The 68-page bill has moved in fits and starts since June 2022, when Senate President Nicholas Scutari, D-Union, introduced it. Lawmakers pulled the legislation from scheduled full chamber votes several times after new substantial provisions were added and pushed through the process at the last minute.
What’s going on with watchdog?
Good-government groups criticized the bill’s original language that allows more money to flood into elections and guts pay-to-play laws so that contractors can donate to officials who may control whether they win a contract. But some lawmakers expressed discomfort with the recent amendments introduced in February that appeared to target ELEC Executive Director Jeff Brindle.
More:Is last-minute change to NJ bill a cloaked move by Murphy to oust an agency head?
More:ELEC executive director avoids discipline after charges of homophobia, racism and more
Under the law, Murphy will have 90 days to select ELEC commissioners without requiring Senate confirmation, giving the governor full power to hand-pick people who have the power to hire and fire the executive director.
Forcing his resignation?
Brindle alleges the Murphy administration has engaged in a months-long campaign to force his resignation for speaking out about dark money, under the pretext of an email Brindle sent a colleague regarding National Coming Out Day. Brindle is suing Murphy and three top aides, alleging “conspiracy to extort and force” his resignation in violation of the New Jersey Civil Rights Act.
Brindle refused to resign or participate in an investigation by the Attorney General’s Office after a staff member filed a complaint regarding an email Brindle sent on Oct. 11, 2022, a day known as National Coming Out Day. Brindle’s email said, “Are you coming out? No Lincoln or Washington’s Birthday’s [sic] but we can celebrate national coming out day.”
ELEC commissioners determined that Brindle would not face discipline after they deliberated 20 minutes at a special meeting last Tuesday and weighed charges of homophobia, racism and insubordination related to masking and failure to cooperate. Commissioners did not consider community testimony or additional Brindle emails referring to the LGBTQ community published by the New Jersey Monitor and WHYY.
What does the bill do?
- Eliminates local pay-to-play rules and replaces them with a sometimes-weaker statewide directive that bans companies with contracts worth $17,500 or more from making donations of more than $300 to candidates and parties.
- Shortens the amount of time that ELEC, New Jersey’s elections watchdog, has to investigate violations from 10 years to two years after a violation takes place, and applies the change retroactively. The move kills four current investigations into allegations of campaign finance law violations from 2017 against Democratic and Republican leadership committees.
- Pays ELEC commissioners, who are currently unpaid, giving them $30,000 salaries.
- Creates a 90-day period when the governor can appoint new ELEC commissioners without Senate approval, as is currently required.
- Doubles, and sometimes triples, the amount of money donors can give to candidates, parties and political committees.
- Requires super PACs, 501(c)(4) nonprofits and 501(c)(6) trade organizations to report donations they receive worth more than $7,500, so-called “dark money” donations that are currently allowed to be kept secret, and all independent spending
- Allows state and county Democratic and Republican parties to create new “housekeeping accounts” to cover non-political expenses.
- Removes limits on contractors donating to state, county and municipal political parties and legislative leadership committees.
What’s next?
Republicans expressed concerns during last week’s voting sessions that the bill could face legal challenges similar to that of a dark money bill signed into law by Murphy in 2019.
A year later, a federal judge blocked enforcement of the law, which would have required social welfare 501(c)(4) nonprofits and 527 political organizations to publicly report their donors that contribute more than $10,000 and spending of more than $3,000 on elections and political activity. The judge issued the order after the liberal American Civil Liberties Union and the libertarian groups Americans for Prosperity and the Illinois Opportunity Project sued.
The groups took issue with a provision that required information to be published about ads that “provide political information” about regulations, legislation and ballot measures, and not just candidates and election speech — which goes further than federal law and similar laws in other states.
The Elections Transparency Act narrows the disclosure requirements to focus on express advocacy — such as ads that use words like “vote for” or “support” — as well as ads that are considered “electioneering communications.”
Electioneering communications are ads aired or published within 30 days of a primary election and 60 days of a general election that mention a candidate or public question and are “unable to be interpreted by a reasonable person in any other way than the communication is supporting or opposing the candidate.” These ads don’t need to include trigger words like “oppose” or “vote against.” They could say something like “Candidate x doesn’t want y to happen. Call these officials and ask them to be reasonable!”
“I’ve long ago … given up the hope of understanding how courts are going to decide,” said Assembly Majority Leader Louis Greenwald, who sponsored the bill. He said the tweaking of the language “directly answers the question from the court that they raised in this issue. We will find out if they agree.”
No ELEC commissioners
Meanwhile, Murphy has 90 days to appoint four ELEC commissioners, with no more than two from each party, before the process goes back to how it was before, in which the Senate confirms the governor’s picks, which could be held up by senatorial courtesy, an unwritten rule that lets a state senator from the home county of the nominee to indefinitely block a nomination.
More:NJ ELEC commissioners resign after Election Transparency Act is passed by Legislature
In 2016, ELEC went months without holding a meeting because the commission did not have a quorum of at least two commissioners.
Because Gov. Chris Christie and the Senate did not consider nominees for three empty seats on the four-member board, ELEC could not issue penalties against politicians and committees it found to have violated campaign finance laws, or file complaints.
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