THE CAMPAIGN-FINANCE STEEPLECHASEWHEN IT COMES TO RUNNING DOWN VIOLATORS, PROSECUTORS ARE NOT EVEN FOLLOWING THE PAC
One Sunday last October, when the Reverend Tommy Barnett passed the plate to boost an anti-abortion initiative, he failed to follow the letter of the law. The First Assembly of God Church minister did not keep track of the individual donors so their names and other information could be reported to state officials.
It has gone down as a rather insignificant event. The donation didn't swing the election in favor of Proposition 110, which voters overwhelmingly rejected on November 3. And although state officials were well-aware of the church's apparent campaign-disclosure violations, they still haven't received any of the required information--beyond the existence of the $5,000 lump sum.
It would be logical, then, that the church would receive some type of punishment. And it follows that it would be a violation of campaign-finance rules for Citizens for Proposition 110--the political action committee that received the money--to spend any of that money. Right? Not exactly. First, church officials say they didn't know of the disclosure requirement. To be illegal, the violation must be intentional.
Furthermore, the Assembly of God collection money was spent long before the secretary of state's election office found out about it. Contributions made during the last two weeks of an election don't show up on campaign-finance disclosure reports until long after the election. Because church officials plead ignorance, the Secretary of State's Office and the attorney general believe they can do little more than pressure the church and the PAC into providing the donor information after the fact. As of last week, officials in the election office were still waiting to hear back from Citizens for Proposition 110. It's not clear if Barnett knew in advance that he would get away with the campaign indiscretion. But if he'd asked, political insiders would have told him that except in a few celebrated cases in which multiple crimes were alleged, prosecutors have refused to charge campaign-finance violators.
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So why should a well-meaning clergyman fret when the state's highest officials have flouted the law with relative impunity?
Prosecutors say they don't go after offenders in court because the campaign-reform law--approved by state voters in 1986--is too strong.
"These laws are virtually unenforceable," says Steve Tseffos, spokesman for Attorney General Grant Woods. Violations of the law are generally criminal, meaning prosecutors must prove that suspected violators were familiar with the law and knowingly set out to break it.
The offices of the secretary of state, attorney general and Maricopa County attorney can recall only two actual prosecutions under the campaign-finance law. Both came against high-profile targets accused of other, more serious charges: former governor Evan Mecham and AzScam's Carolyn Walker. (While the other lawmakers caught in AzScam were all initially charged with violating the law, the counts were dropped in plea bargains.) Of those two, only Walker was convicted of filing a false campaign statement. Although impeached by the legislature, Mecham was acquitted in criminal court.
Officials cite Mecham's acquittal as one of the reasons they're reluctant to take violators to court. "As far as the Mecham case, that was about as solid a case as you can get," says deputy attorney general Lisa Hauser, who works in election law.
That's not to say there haven't been any other potential cases. Governor Fife Symington's 1990 campaign finances have been questioned a number of times.
First, there is the matter of a $1.3 million "loan" Symington got from his mother and his wife--money that helped him defeat opponent Terry Goddard. The law places strict caps on the amount individuals can loan or give to a candidate: In 1990, the limit was $550. There is no exemption for family members written into the law. However, former attorney general Bob Corbin interpreted the law liberally, saying a "loan" from a family member can be legitimate as long as the candidate can produce promissory notes. Current Attorney General Grant Woods' interpretation is similar. He says that loans from family members must be reviewed on a case-by-case basis to see if they can corrupt an election.
That interpretation is being challenged in the Court of Appeals by Common Cause, a government watchdog group. "They're trying to read someone's mind," argues Paul Hogan, director of the Center for Law in the Public Interest and attorney for Common Cause. ". . . They're saying if it was given to Fife out of love and affection and not for the purpose of influencing the election, it's okay." Symington has yet to make public a promissory note or any documentation regarding the loan.
That's not the only potential campaign-finance case against Symington. As recently as last September, a local daily revealed that the governor received thousands of dollars of contributions from employees (or their relatives) of Hensley & Co., a beer distributorship owned by Senator John McCain's father-in-law.
On two days in 1990, 14 such contributions totaling $8,450 went to Symington. Because contributions from corporations are illegal, companies that wish to circumvent the law often mask the money in contributions from individual workers, a practice called "bundling." But bundling is only illegal if it can be proved corporate officials conspired to circumvent the law. At the time, County Attorney Richard Romley said his office had already looked into the charges and found nothing. In other words, the simultaneous donations were coincidental. In the bundling case, prosecuters say it would be hard to get a conviction without a "smoking-gun memo" from a company official to employees requiring they give money to a particular candidate.
Despite prosecutors' protests that the law is too strong, there are some provisions in the law for civil action, such as in the case of illegal contributions. In those cases, the law says prosecutors can go after violators for three times the amount of the illegal contribution. Still, assistant secretary of state Sam Vagenas says officials would rather have the candidates return the money after the fact than try to punish them through the courts. There are other reasons campaign-finance prosecutions are given low priority. Most of the penalties are misdemeanors or low-level felonies, and the "concerned citizens" who report violations are often political opponents of the alleged violator. "Given the resources you have to investigate," says Tseffos, "do you want to spend loads of time being used as a political pawn?" What officials want is more power to do things out of court, such as setting up an "administrative hearing process" to punish offenders with civil fines. Through that process, anyone who violates a campaign-finance rule--misses a filing date, fails to report a contribution, et cetera--can be fined regardless of criminal intent. Like prosecuting a speeder, authorities wouldn't have to prove a driver knew what the speed limit was--only that he broke it.
"It's amazing how when you start talking about money, people act," says Vagenas. In January, a bill assigning civil fines to campaign-finance violations was introduced to the state Senate for the third year in a row. Under such a system, the First Assembly of God Church and the PAC to which it contributed could have at least been fined.
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