NYC Charter Revision: Observations on Draft Amendments

On Monday, August 23, the New York City Charter Revision Commission is scheduled to hold its final public hearing and meeting and issue its ballot proposals for November’s elections.  The draft Charter amendments were issued yesterday.  We offer several observations. A Five-Term Limit? The draft proposal for a two-term limit would preserve the current three-term limit solely for persons holding City office on November 2, 2010 ((proposed section 1152(k), at p. 7). Interestingly, this “grandfather clause” is contrary to the City Council’s stated intent in extending term limits to three terms in 2008. That local law stated that should the Charter later be amended by voter referendum to restore the two-term limit, the three-term limit “shall be deemed repealed” – no ifs, ands or buts. Another wrinkle: the draft Charter proposal would prospectively preclude the Council from adopting a local law to change a term limit as it applies to an incumbent City officeholder. But, as drafted, the grandfather clause appears to make this restriction on Council authority inapplicable to persons holding City office on November 2, 2010. In other words, the new Charter language may be read to permit the Council to adopt a local law that permits officeholders now serving their third consecutive term to be elected to two additional consecutive terms. Disclosure of Independent Expenditures In crafting Charter amendments to require disclosure of independent expenditures in City elections, the thorny details are left to future Campaign Finance Board regulations. By defining IEs as those “made … in support of or in opposition to a candidate”, it is unclear whether the Commission intends to limit the scope to “express advocacy” or to invite a more expansive reading that would also cover issue advocacy that makes reference to a clearly identified candidate (proposed section 1052(15)(a)(i), at p. 11). The definition is not limited to public communications and could, for example, include expenditures made for research on candidates that never sees the light of day. Indeed, even the potential coverage of certain communications may be controversial, such as when a labor union mails a newsletter to its members listing the candidates it has endorsed. And there’s no news media exception, so just what is intended in the case of newspaper endorsements, or internet exception: bloggers beware! Finally, the extension of City law reporting requirements to all political committees partially replicates the dual reporting regime that City candidate-candidate committees face with the CFB and the State Board of Elections. This creates a potential for some interesting conflicts. Say, for example, a State party committee has a housekeeping account. The State Board might find its use to be proper as a “non-candidate” expenditure, while the Charter amendment would give the CFB independent jurisdiction to reach a contrary conclusion. Whose judgment controls?