by Neil Gibson
In Washington, DC, embattled mayor Vincent Gray and several members of his 2010 mayoral campaign remain the subjects of a federal criminal investigation regarding the campaign’s alleged violations of city campaign finance laws. Among other things, Gray’s campaign faces a growing body of evidence suggesting attempts by staffers to circumvent the city’s $25 cap on an individual’s cash donations to local political campaigns. In particular, the Washington Post discovered this past July that members of Gray’s campaign had repeatedly sought to disguise solicited cash donations of over $25 by illegally using the donated cash to purchase money orders, whose per-individual contribution limit exceeds that of cash. With D.C. Municipal Regulations calling for the itemization and reporting of all campaign contributions exceeding $15, to surreptitiously transform cash into money orders would enable a campaign to report forbidden cash donations of over $25 as money orders, and thereby avoid statutory penalties for campaign finance violations.
When faced with the Post’s revelation of his campaign’s illegal behavior, Gray seemed eager to remove himself from the fray, noting that the “chaotic” nature of his “truncated” campaign forced him to “trust people to run what they were responsible for.” He stated further that lower-level campaign staffers had received training materials outlining the city’s specified rules about cash donations, and affirmed that any who nonetheless “willfully” made “mistakes” would need to be held accountable. Although Gray was assuredly right to insist upon accountability for those in his campaign who violated the law, a question arises as to whether accountability should end with the violating individual. As one veteran of DC mayoral campaigns pointed out, it was Gray who was ultimately responsible for the people operating in his campaign.
Whether the rampant violations of DC campaign finance laws in Gray’s campaign followed from his staffers’ ignorance of the law or a pre-meditated effort to get around it, the notion that a candidate could avoid legal accountability for violations within his own campaign seems a good way to ensure that similar violations happen again. After all, if a mayoral candidate can use illegal contributions to win an election, and then foist all responsibility for the illegal acts onto staff members by proclaiming ignorance of staff activities, a candidate’s incentive to take on scrupulous campaign personnel and make efforts to ensure compliance is reduced. Assuming, therefore, that a candidate for political office has the power to inform the character and conduct of his campaign, a solution to preventing future campaign finance violations would be to hold the candidates themselves accountable for their staffers’ illegal actions.
Under current DC law, a candidate’s accountability for her campaign’s violations of DC campaign finance laws is unclear. According to DC ST § 1-1107.01, any person or “political committee” found in violation a DC campaign finance law “shall be fined not more than $5,000, or shall be imprisoned for not longer than 6 months, or both,” with stiffer penalties for knowing filings of false or misleading statements. Although the maximum penalty is nothing to sneeze at, it appears that a candidate would escape scot-free when some “person” within her campaign violates the law. Meanwhile, “political committee” is defined as any “proposer, individual, committee…or other group of individuals organized for the purpose of…promoting or opposing the nomination or election of an individual to office.” By this definition, whether a political committee’s campaign finance violation would mean legal consequences for the candidate herself is not evident. If, as it seems, there is thus no clear DC law in place enforcing candidate accountability for the campaign finance violations of her campaign staffers, this author advances that it would be a good idea to include one.
Such a measure, for example, could impute to the candidate the guilt of his campaign staffer, leaving the candidate vulnerable to the same penalties the staffer would face. Further, remembering that the goal of a candidate accountability measure would be to push candidates toward encouraging staff compliance with campaign finance laws, it might also be wise to provide the candidate an affirmative defense. For example, if a candidate can show by sufficient written documentation that all staff members have been informed of pertinent laws by the beginning of campaign activities, then he could assert immunity from accountability for staff members’ acts. Moreover, perhaps those candidates who demonstrably go the furthest to ensure staff compliance would earn the benefit of the doubt in the eyes of the law. Practically speaking, the inclusion of defenses would work to keep the otherwise harsh accountability law from limiting to drastically the number of prospective candidates.
Regardless of one’s preferred solution, the ugly scandals defining the aftermath of Mayor Gray’s election suggest a need for reform to ensure that future mayoral campaigns afford more respect to the District’s campaign finance laws. As a city with a legacy of shaky political leadership, for Washington to insist on harsh accountability measures for its politicians makes particularly good sense. With its political reputation sinking lower and lower as the numerous improprieties of Gray’s campaign gain ever-increasing exposure, it doesn’t seem at this point that the city has much to lose.
Neil Gibson is a third-year student at William and Mary Law