By now it seems that everyone pretty much acknowledges that Utah’s law prohibiting candidates from soliciting campaign contributions during the legislative session is unenforceable as to candidates for federal office. In addition, as I pointed out this past November, it may also be unconstitutional with respect to other candidates.
But the law can be fixed, and the fixes are not that difficult.
For example, rewriting the law like this (just want to make sure you’re clear this is a proposed rewrite) would clearly make its prohibitions (at least the ones that remain) enforceable:
36-11-305. Campaign contribution during session prohibited.
1. It is unlawful for a
person,lobbyist, principal, or political committee to make a campaign contribution or contract, promise, or agree to make a campaign contribution to a legislator or a legislator’s personal campaign committee, or a political action committee controlled by a legislator during the time the Legislature is convened in annual general session, veto override session, or special session.
2. It is unlawful for a
person,lobbyist, principal, or political committee to make a campaign contribution, or contract, promise, or agree to make a campaign contribution, to the governor, the governor’s personal campaign committee, or a political action committee controlled by the governor during the time the Legislature is convened in annual general session, veto override session, special session, or during the time period established by the Utah Constitution, Article VII, Section 8, for the governor to approve or veto bills passed by the Legislature in the annual general session.
3. The prohibitions contained in this section shall not apply to a contribution, contract, promise, or agreement to make a campaign contribution to an announced candidate, or to such candidate’s person campaign committee or a political action committee controlled by such a candidate, for United States Congress.
4. The prohibitions contained in this section shall not be construed to prohibit an announced candidate from making a direct personal contribution to that candidate’s personal campaign committee.
3.5. Any person who violates this section is guilty of a class A misdemeanor.
There it is representatives/senators, H.B./S.B. ____. The proposed revisions above are just a reflexive first crack at fixing the law, but they address the problems of federal preemption as well as potential constitutional concerns resulting from the extension of the prohibitions to all people, as opposed to only lobbyists.
It would leave the law enforceable as to legislators and the governor, if running for re-election or another municipal, county, and state offices, when it comes to contributions from lobbyists and political committees, but would allow citizens and candidates to make contributions to candidates during the legislative session. It’s primary effect would be to eliminate contributions from lobbyists made during the session, which was the primary focus of the law as originally enacted. Contributions to candidates for federal office would be regulated by federal law. If our legislators don’t like the fragmented nature of the law as it remains, they should repeal it.
Regardless of the final language that’s used, the fix is straightforward and should be made. But certainly no current candidate is going to bring a legal challenge to the law, thereby giving his opponent an issue to use against him in the upcoming campaign. And I worry that our state legislators (and perhaps the governor himself) likewise lack the political will to do anything about Utah’s session contribution law because they’re worried it might be bad for their political careers to become known as the person who loosened restrictions on politicians being able to solicit money during the legislative session.
Indeed, it appears that everyone may be content just to leave the law on the books as another unenforceable statement — a statement that is, though without the actual force of law, nonetheless potent because no one wants to risk their careers by being the one to cross it. Or, maybe because some wish the law were enforceable and are content to let it operate as though it were. Both sides rationalize their positions by saying, “Hey, enforceable or not, it’s a good practice. Why not just leave things as they are?”
But regardless of whether people shouldn’t be taking campaign contributions during the legislative session, this isn’t the way we should be legislating (or, not legislating, in this case).
Someone needs to step up and fix this law, or get rid of it altogether.