“Pay to Play” A Primer
Corruption is like a ball of snow, once it’s set a rolling it must increase.
– Charles Caleb Colton
Bribery is legal in New Jersey. Those outside New Jersey may find this shocking, those within merely annoying, but indeed it is legal in the state of New Jersey for businessmen (and women) that are seeking to receive benefits from public officials to give those same public officials money – provided the bribes meet certain specifications.
Wouldn’t that cause lots of conflicts of interest and compromise honest government services leading to inefficiency and higher costs for taxpayers? Wouldn’t a state that allowed such obvious corruption face a lack of trust in government as a result? Yes and yes.
As anyone who has watched Boardwalk Empire knows, corruption is not particularly new to New Jersey.
New Jersey was corrupt even before it was part of America having possibly the most disgraceful British Governor in the American colonies, Lord Cornbury. Lord Cornbury was notorious for taking bribes and stealing from the treasury, partly to pay for a cross-dressing habit. Pay to Play Dress Up.
One of the most notorious post-independence powers-that-be, also featured in Boardwalk Empire, was Hudson County boss Frank Hague. Hague was the very definition of a Jersey machine boss once even declaring “I am the law” during his 30+ year tenure as Mayor of Jersey City. Pay to Play was so institutionalized in Jersey City that Hague’s desk had a specially designed lap drawer which could be pushed outward towards the person with whom he was meeting to collect bribes in the form of envelopes full of cash.
And let’s not forget those friends of ours, whose main concern is wetting their beak in construction and other public works projects. Pay to Play is their Bread and Butter.
In 2004, before resigning over corruption relating to a real estate developer (being gay is not illegal), Governor McGreevey signed a law (P.L. 2004, c. 19) and issued Executive Order 134 which somewhat reformed Pay to Play – most notably adding additional transparency to no-bid contracts, where a good deal of nepotism and cronyism goes on. If there is no bidding process by definition the contract is given to someone already known by the public officials usually those known persons know how to return a favor. In 2005 McGreevey’s Executive Order was essentially codified into law (P.L. 2005, Chapter 51). All these laws culminated in the New Jersey Campaign Contributions and Expenditures Reporting Act (N.J.S.A. 19:44A-1 et seq).
Despite these reforms, as recently as September 15th a report was released by the State Comptroller claiming the Pay to Play reforms were basically meaningless on the local level. Let’s pretend this was not released in September as part of a Republican election strategy (which it totally was), what is the substance of Comptroller Boxer’s argument?
Boxer claims an exception added in the previous reform laws, namely the “fair and open exception”, is so weak and easily bypassed it leaves the old Pay to Play system unchanged.
One of the hallmarks of New Jersey’s traditional no-bid contracting system was the nearly unlimited discretion of the agency awarding the contract in selecting a politically favored vendor. In practice, fair-and-open requirements do not materially change that substantial discretion. (pg 6)
In other words the law did not stop the corruption in any meaningful way. Boxer concludes:
In practice, the system of fair-and-open has multiple weaknesses. As a result, it presents few, if any, real obstacles to a government entity seeking to award a contract to a politically favored vendor. As long as the contract opportunity is minimally advertised and selection parameters of any kind are drafted, the ultimate award is within the entity’s discretion and immune from outside review. In effect, no-bid contracts may be awarded to favored local vendors much as they had been prior to the passage of the pay-to-play law, and without regard to issues such as vendor cost. While no legislation can eliminate all risk associated with political corruption and donor influence in the government procurement setting, it is apparent nearly six years into its implementation that the fair-and-open system offers notably few hurdles for wrongdoers to overcome. (pg 14)
So Pay to Play continues, fully. The law, according to Boxer, is merely a speed bump on the way to hog highway. But before you think Boxer has some solutions here comes the next sentence:
In arriving at that conclusion, we acknowledge that campaign contributions are an appropriate and necessary part of a robust democratic process.36
What? Says who? Boxer’s footnote is quite revealing:
36 See, e.g., N.J.S.A. 19:44A-20.13; Citizens United v. Federal Election Comm’n, 130 S. Ct. 876, 898 (2010); Melanie D. Reed, Election Law: Regulating Political Contributions by State Contractors: The First Amendment and State Pay to Play Legislation, 34 Wm. Mitchell L. Rev. 635, 645 (2008).
The Citizens United decision was a corporate license to steal (elections). It seems Boxer’s actual objection is not corruption but the size of the businesses engaging in it. Beware of politicians baring righteous indignation.
In any case, Pay to Play is alive and well in New Jersey. And why not? It’s tradition.