Bill Christofferson and the blog called Whallah. (apparently put up to stalk her across the internet) think Jessica McBride is off base for thinking that an FEC ruling that Mark Green did not break federal election law in transferring federal campaign funds to his state account sometimes vindicates Green of last fall's Doyle/State Elections Board hit on his integrity.
They argue that no one said he violated federal law. It was state law that he broke. McBride is wrong, wrong, wrong.
No, actually, she isn't wrong at all. There was, Xoff and Whallah-guy will recall, this nasty little issue of the SEB having permitted Tom Barrett to do what it said Mark Green could not. The reconciliation of this, argued for by the SEB and state Justice and accepted by Judge Neiss, was that there had been an intervening change in federal law.
In particular, the argument was that the Bipartisan Campaign Reform Act had been amended in 2004 to say that permitted use of federal funds included "donations to state and local candidates subject to state law." This supposedly created a new restriction on conversions that did not exist when Barrett transferred his funds. The argument was that now only lawfully raised federal funds that could also have been lawfully raised under state law could be converted. This was important, not only legally, but politically because it allowed Doyle supporters to argue that Green "should have known" that what he proposed to do may have been right in the past, but that it was wrong now.
I thought that was a pretty hinky argument back then and the FEC has now agreed. Nothing in the amendments to the BCRA required or caused a change in state law. The SEB simply changed the rules on Green.
In fact, when Judge Neiss denied Green's motion for a preliminary injunction, Xoff crowed loudly and cited the court's reading of the federal law . Now that this reading has been rejected by the FEC, he claims it is irrelevant and that Jessica McBride is foolish for thinking it has anything to do with what the Dems did to Green.
I understand that consistency is not a core value in the political consulting game, but lawyers have a hard time getting away from it.