Thursday, September 28, 2006

Green Team Saw BCRA Amendment As "Advantage"

Tucked away in a giant 3,300-page appropriations bill in late November 2004 was a provision that is now at the heart of the complaint filed by the Wisconsin Democracy Campaign against Mark Green's gubernatorial campaign yesterday.

The provision amended the 2002 Bipartisan Campaign Reform Act (BCRA) by adding two permissible uses for federal campaign account funds:
  1. "for donations to State and local candidates subject to the provisions of State law"
  2. "for any other lawful purpose unless prohibited by subsection (b) of this section"
At the time, the provision was heralded by many as an opening for federal politicians to move funds from their federal campaign account to a state campaign account. The original BCRA (also known as McCain-Feingold) didn't allow federal campaign funds to be used in this way.

One of the people doing the heralding was Congressman Mark Green's chief of staff -- who now serves as his state campaign manager -- Mark Graul.

Shortly after the bill was passed, Graul told Spivak and Bice in a December 1, 2004 column: "[The provision] shows the many advantages that Mark will have if he chooses to run for governor. This is just one."

So the Green Team was quite aware of the BCRA amendment less than two months before it took $1.3 million from Green's federal campaign fund and moved it into his newly created state campaign fund.

What's still in question is why the Green Team interpreted that amendment in the way that it did. As the provision clearly states, donations from federal to state campaign accounts are "subject to the provisions of State law."

And this is where semantics enters into the equation.

In his appeal of the state Elections Board decision last week, Green argued that the movement of funds was a "conversion" rather than a "donation," and therefore fell under the second allowable usage for federal campaign funds in the BCRA amendment: "for any other lawful purpose unless prohibited by subsection (b) of this section."

But Judge Niess soundly rejected this reading of the BCRA amendment (emphasis mine):

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The problem with this argument is that subsection (6), both by its own terms and by basic rules of statutory construction, does not apply if the transfer of funds is governed by subsection (5). "[A]ny other lawful purpose" in subsection (6) means any lawful purpose other than those already addressed in the statute. As the Court has found, the transfer of funds at issue here is unquestionably a "donation" to a state candidate and therefore already specifically addressed in subsection (5). It is axiomatic that where two statutes potentially dealing with the same subject matter could lead to different results, the more specific statute controls. Mayer v. Mayer, 91 Wis. 2d 342, 350, 283 N.W. 2d 591 (1979).

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Thus, if the move was indeed a "donation," it falls under the provision of state law that pertains to contributions to a state campaign fund. This provision, found in Chapter 11.01 of the Wisconsin Statutes, states that a "contribution" refers in state campaign finance law to "a gift, subscription, loan, advance, or deposit of money or anything of value...made for political purposes" (emphasis mine).

In spite of this clear language of what a "contribution" means in Wisconsin law, Green saw another opening to argue over semantics, claiming that "donation" in the BCRA amendment is not the same as a "contribution" in Chapter 11.01 of the Wisconsin Statutes.

Again, Judge Niess easily dismissed this argument:

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Reference any dictionary or thesaurus for the words "gift," "donation," and "contribution," and it is exceedingly difficult to find a definition or synonym for one that does not incorporate explicit references to the others. Certainly, the Wisconsin Supreme Court has used the terms "contribution" and "donation" interchangeably. [...]

Even if one accepts Green's argument that there is a reasonable construction of "contribution" under Chapter 11 that would not include a "donation" under 2 U.S.C. ยง439a(a)(5) (which the Court does not), at best this would only create an ambiguity in the definition of "contribution," that is, competing reasonable interpretations. The Wisconsin Supreme Court has repeatedly admonished that courts are to resolve ambiguities in the meaning of a statute so as to advance the Legislature's basic purpose in enacting the statute.

[...]

Resolving any ambiguity in the definition of "contribution" in the manner urged by Green frustrates the legislative purpose in enacting Chapter 11 and thus cannot be countenanced.

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So we're left to guess about why Graul viewed the BCRA amendment as an "advantage" to Green's looming gubernatorial bid back in December 2004. Something tells me inattention to detail is an unlikely answer.

But what we know for sure is that the Green Team was very much aware of the amendment when it moved $1.3 million into a newly created state campaign account in January 2005, regardless of the supposed "inconsistent" advice it received from the state Elections Board on the matter.

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