KEVIN LEININGER: End of ‘pay to play’ law makes transparency in government, politics even more important

(Courtesy image)
John Crawford
Kevin Leininger

“When I’m elected mayor, any appearance of any favoritism in awarding contracts for city business will cease . . . the pay-to-play ordinance will result in lower-cost contracts, more competition, more respect for city government and will save millions of dollars for Fort Wayne citizens.”

City Council President John Crawford spoke those words on May 1 about the bill he had co-authored in 2017 that limits campaign contributions to local officials by individuals or companies seeking city contracts. A week later, Crawford lost his bid for the Republican mayoral nomination to Tim Smith — a political injury that was followed by legal insult earlier this month when Allen Superior Court Judge Jennifer DeGroote upheld the lawsuit that had sparked Crawford’s defense in the first place.

In their challenge of the pay to play law filed in April, Kyle Witwer, owner of Witwer Construction Inc., argued with wife Kimberly that the bill not only usurped the state’s authority to regulate campaign contributions but also violated potential donors’ free-speech rights speech. The legal principle linking political spending to the First Amendment had been endorsed by no less than the U.S. Supreme Court in its 5-4 Citizens United decision in 2010, and Indiana Attorney General Curtis Hill, like Crawford a Republican, last September issued a non-binding but ultimately prescient opinion that Crawford’s bill was in conflict with both state law and the Constitution.

Technically speaking, perhaps, the pay-to-play law did not limit anybody’s ability to write campaign checks; it merely stated that contributors of more than $2,000 per year to local candidates would not be able to seek city contracts. And just before the law took effect in January 2018, Mayor Tom Henry’s campaign received several extra-large contributions, many from law firms that have received millions of dollars in city work.

Nevertheless, the Witwer’s complaint — written by former Fort Wayne Community Schools Board member and Democratic City Councilman Mark GiaQuinta — offered several compelling counterpoints. For one thing, GiaQuinta stated, a contributor to a local school board candidate could be prevented from seeking a city contract even though one has nothing to do with the other.

“The Witwers seek to protect their right to express their political voices by contributing to the candidates of their choice for local offices and schools boards without risk of penalties . . . being applied to Kyle’s business, which performs contract management services,” GiaQuinta wrote. “Spouses married to those desiring to offer professional services are treated differently from those unrelated to business entities covered by the ordinance (because it also applies to spouses and minority partners) . . . the failure of the ordinance to include non-married partners of the owners of business entities deprives Kim (Witwer) of equal treatment under the law.”

That’s a fair point. As a journalist I do not contribute to political candidates for ethical reasons. But my wife is under no such obligation. My job does not limit her rights.

GiaQuinta raised another legitimate point that was inadvertently supported by Crawford himself when he talked about the “perception” that city contracts can be influenced by contributions. No empirical evidence was ever presented linking contributions and contracts, “And the Witwers deny that their decision to contributes to candidates for local office is an attempt to influence the awarding of city contracts,” he stated.

Not even Crawford thought the law was perfect or would eliminate the influence of money on politics, and for good reason: As I wrote in April, Smith reported nearly $500,000 in contributions and cash on hand in his pre-primary report, Crawford listed $507,000 and Henry was closer to $570,000. Much of Crawford’s cash came from himself and family members, and Smith has received large donations from the Northeast Indiana PAC for Better Government, which in the last period included $7,500 from Parkview Health CEO Mike Packnett and $5,000 from a firm headed by Kevan Biggs, one of the Electric Works’ developers. The bill limited neither self-funded campaigns nor PAC contributions, and as one City Council candidate told me in April, some contribute to PACS hoping to avoid scrutiny.

Crawford said any decision on a possible appeal or revised ordinance will be made after a legal review by council attorney Joe Bonahoom. But DeGroote’s ruling would seem to leave little room for a revision that would survive a challenge. A far more fruitful approach would be for all candidates and elected officials to pledge transparency in their campaign reports and decision-making — and for the media to do a more diligent job of reporting who gives what to whom, and whether it seems to be rewarded inappropriately.

This column is the commentary of the writer and does not necessarily reflect the views or opinions of The News-Sentinel. Email Kevin Leininger at kleininger@news-sentinel.com or call him at 461-8355.