Tuesday, May 08, 2007

Actually she's spot on

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.


Anonymous said...

Do you still practice law? If I ever want to sick a lawyer on someone, you're my choice. ;)

xoff said...

Twist it as you might, the fact remains that I never accused Green of breaking federal law. I did accuse him -- and still do -- of breaking state law. I took the same position when Barrett made his transfer.

Seth Zlotocha said...

Piggy-backing on Xoff, I’m not so sure this gets Green off the hook, Rick.

As you note, the 2004 amendment to the BCRA allowed for "donations to State and local candidates subject to the provisions of State law." The key word is "donations" since Wisconsin state law says that donations to a state campaign fund can’t exceed $43,128, which means that most of the $1.3 million that Green donated from his federal campaign coffers to his state campaign coffers was in violation of state law.

All the FEC said yesterday is that a federal law wasn’t broken since, of course, donations from federal to state campaigns are acceptable under the BCRA. This, however, says nothing about the state law limiting how much can be donated. As the opinion states: "Given that a state can adequately address violations of its own laws through the enforcement power of its Elections Board (or similar body) and judicial system, the Commission does not believe it should expend its resources to investigate alleged violations of state law. This is particularly true where, as here, the state is already pursuing the matter."

And Niess was clear about this in his ruling, as well, when he wrote: "In short, a donation...is a 'contribution' subject to the limitations and other regulations contained in Chapter 11 of the Wisconsin statutes governing the use of money in Wisconsin political campaigns. Thus, even if the Court were to adopt Green's argument that the Elections Board should be enjoined from enforcing its Emergency Rule and Order because they are illegal for any number of reasons -- arguments which raise some serious and legitimate questions -- Green still cannot succeed on the ultimate merits of this case because the Court cannot grant the requested declaratory judgment finding 'that funds a state campaign committee has on hand when it converts from federal registration are not counted against Wisconsin's contribution limits.' "

Rick Esenberg said...

I'm not twisting anything. You know, I know and the American people know that the Doylies were not saying: "Gee, the State Elections Board has reversed itself and, what was legal for Barrett, has been made illegal for Green. I guess it must suck to be him."

What they were saying is: "Oh my God, Mark Green broke the law! He doesn't care. He's as bad as our guy so let's put the ethics stuff behind us."

Because if that wasn't the narrative then all we had is a disagreement between parties as to what state law requires. But if that's all that was going on, there was no scandal. No hook, Seth, to put Green on. No fodder for all the sepia-toned attack ads we say.

Certainly the FEC ruling allows Wisconsin courts to interpret their law in whatever way they choose and it is possible that they might interpret it to prohibit these conversions even though they had been permitted previously.

But that's nothing more than a boring technical question as to whether the SEB should reverse its ruling in Barrett's case and now hold that converting federal funds to a state account amounted to a donation under state law.

Doyle needed more than that and it was the change in federal law that was used to support the Dems' preferred narrative.

Contrary to what you assert, that change was central to Judge Neiss' decision. Right after the words that you quote, he writes "controlling federal law, through its incorporation of Wisconsin's campaign finance law, in fact compels the opposite finding." Earlier he writes of the "coup de grace" to Green's case was delivered by 2 U.S.C. 439a(a)(5). This is a federal statute. His point seems to be that federal law makes the donation of federal funds necessarily subject to limitations on state campaign contributions.

The FEC now says otherwise. State limits apply to federal conversions only if the state decides that they do. Making that determination in Green's case required reversing the rule applied to Barrett and that reveral cannot be attributed to an intervening change in federal law.

Maybe Judge Neiss would have so held but that would have been a different ruling than the one he made.

It is now absolutely clear that the SEB changed the rules on Green and that he was trying to do precisely what Barrett did under what, in relevant part, remained the same state and federal statutory framework.

Maybe the SEB was wrong when they helped Barrett and right when they hurt Green. But the Doyle campaign slandered Green (in a moral, not a legal sense) and this ruling makes that even clearer today than it was last fall.

Seth Zlotocha said...

The 2004 change in federal law was important to Niess because it's what added the provision that only "donations" are allowed from a federal campaign coffers into a state campaign coffers. In that sense, federal law is controlling because it's dictating the general terms on which the money can be moved, while state law is specifically defining how those terms apply to Wisconsin candidates. Green was right about being able to move money between the accounts, but he was wrong about how much he could move. This is the argument the state DOJ made before Niess and the one that Niess put forward in his decision, and it's not at all contradicted by the FEC ruling.

McBride is just trying to use this FEC ruling to slip around the legality of Green's actions, and you're doing the same by trying to shift the argument from the law to campaign morals (as if such a thing existed in electoral politics outside of the law).

Anonymous said...

Rick - why doesn't anyone know the law anymore? We can't even figure out if Green could use the money here or not?

Wisconsin alone has 1,000's of appeals every year. Why don't our judges know what they're doing and do our appeals courts encourage it or discourage it?

Rick Esenberg said...

No, Seth. The FEC ruling means that federal law is irrelevant on the legality of Green's conversion. It incorporates no state law limitations on such movements.

So - if Green's conversion was not permitted, it is because it is precluded by state law - the same state law that existed when Barrett did the same thing.

It could be - and I guess Bill would argue - that Barrett should not have been permitted to do it either. But that would mean that the controlling interpretation of the exact same law changed between 2002 and 2006.

Of course that can happen. Error need not temain indefintely. But, if that's all that happened, then the hyperventilating Doyle ads were a moral slander. Green did not "break" or "ignore" the law. He had the SEB change up on him.

That's where Jessica's point about Green's reputation comes in.

As for DOJ's argument, that they did say that the Barrett decision was wrong but they also said it was irrelevant because of the BCRA. They argued that there was a clear federal prohibition against doing this that Mark Greeen ignored. The FEC has now told us that there's not.

Rick Esenberg said...

Anon 2:06

If the law was so clear, I could not earn enough to support myself in the style to which I have grown accustomed.

Seth Zlotocha said...

Here's what the state DOJ argued:

"Green places great emphasis on past actions and opinions of the Board, ascribing to such actions and decisions a precedential or stare decisis status this it implores the Court to adopt. Not only is such reliance on previous Board actions and opinions misplaced, it is largely irrelevant to the legal issues of the current dispute, given the substantial changes in federal and state law regarding campaign financing that have been enacted over the past four years."

The SEB decision in the Barrett case, while quite possibly wrong, had no bearing on the Niess decision in the Green case -- they were discussing different violations. Indeed, the complaint against Barrett dealt with whether it's appropriate to use out-of-state PAC funds for an in-state election. The SEB said it was, but they never actually ruled on the issue of whether Barrett's transfer was above the Chapter 11 contribution limit, which is the violation the DOJ and Niess focused on. Barrett clearly violated this contribution limit, too, but there was never an official complaint raised about it (at least that I'm aware of).

And what the FEC said in its ruling yesterday is that Green didn't violate federal law, not that federal law is irrelevant. According to the ruling: "The threshold issue in this matter is whether the clause 'subject to the provisions of State law' in Section 439a(a)(5) should be read to prohibit a federal-to-state transfer if that transfer violates state law, or whether the clause merely makes clear that state law is not preempted in this context. For three principal reasons, we believe that the clause signifies the latter and that a violation of state law does not create a violation of Section 439a(a)(5)."

The FEC is explicitly stating that just because the move broke state law, that doesn't mean it necessarily breaks federal law even though the state law is referenced in the federal law. But that doesn't mean federal law isn't relevant to the case at hand.

In the end, I can see your point that Green was simply operating under the SEB ruling in the Barrett case, at least initially. But, as the DOJ argued, even setting that ruling aside, Green's transfer of funds was still in violation of state law. So when McBride says that Green is vindicated by this FEC ruling, it's really comparing apples to oranges. She's still focusing on the issue of whether it was justifiable for the SEB to retroactively apply its out-of-state contributions emergency rule to Green, but the FEC ruling actually pertained to the contribution limit violation the DOJ and Niess focused on, not the violation that was initially raised with the SEB.

Anonymous said...

Actually she's spot on

Perhaps I lost the thread here (one reference to BCRA and my eyes glaze over), but what exactly was Mrs. Bucher "spot on" about?

All she did was highlight a phrase from somebody else's report and demand an apology from someone for something he never said.

For this she deserves a plaudit?

Anonymous said...

There's also a link to this, if anyone can make either head or tail of it:

"Today, Justice David Prosser took the rather astonishing opportunity to write a concurrence with the dismissal that reads more like a scathing dissent - of his colleagues on the court."

He took a rather astonishing opportunity? To write a scathing dissent of his colleagues? No wonder nobody can agree about what she's talking about, it practically gibberish.

Rick Esenberg said...


We may have long passed the point where any one but you and I care, but I think you are wrong here.

In 2001, the SEB permitted Barrett to convert federal funds even thought they were raised from non-Wisconsin PACs.

In 2006, the SEB required Green to return converted funds that had been raised by non-Wisconsin PACs through promulgation of a new rule enacted the day after the transfer (and then subjected to some more procedural wrangling). Green sought to enjoin the enforcement of that rule and that came before Judge Neiss. The issue in that case was never whether he had to return all funds in excess of $ 43,128. Even if the same principle that was at stake would have required that as well, it couldn't have been the issue because no one said he had to do it.

An obvious question to be addressed was the inconsistency between what the SEB did in 2001 and what it was doing in 2006. DOJ did say that the SEB was wrong in '01 but it's more developed argument was that, as it put it, the "legal landscape had changed" with the passage of BCRA in 2002 and its amendments in 2004.

Initially, the FEC interpreted the BCRA to prohibit these kind of conversions. In 2004, it was amended to include language which said that a federal committee could make donations subject to state law.

Judge Neiss concluded that Green couldn't win because, even if the new SEB rule was invalid, federal law prohibited any transfer of funds that was inconsistent with state law. In other words, the BCRA amendment reached out and "pulled" state limitations into federal law and prohibited transferring federal money into an state account unless the state committee could have itself raised that money.

Judge Niess did not, contrary to what you say, focus on the aggregate contribution restiction as opposed to the contribution source restrictions. He said that federal law now incorporated Wisconsin campaign finance law. (Dec., p. 14)

Indeed, if you believe that conversions are subject to state law, it is unclear why you would distinguish between either type of restriction.

The FEC ruling says that the BCRA did not incorporate state campaign finance law into federal law. All it does is make clear that state law is not preempted.

So - in assessing whether Green could convert these funds - we must return to state law. No change in the legal landscape after all.

And when we return to state law, we see that the SEB did one thing in '01 and another thing in '06. Maybe it was wrong in '01 and should have permitted Barrett to keep only money from Wisconsin registered PACs. Maybe it should have ruled that, no matter where the money came from, Barrett federal could not give more than whatever the limit was then to Barrett state.

But any way you look at it, Green was being told in '06 that he could not do what Barrett did in '01 under what was, essentially, the same legal landscape.

And that has everything to do with whether it was appropriate to accuse Barrett of ignoring the law and engaging in some kind of campaign hi-jinks.

Which is why Jessica asks where Green can go to get his reputation back.

xoff said...

Actually, what Jessica asked was when Jim Doyle, Joe Wineke and I would apologize for something we never did -- accuse Green of breaking federal law.

Again, Doyle and I (I don't know about Wineke) both said Green -- and Barrett -- were breaking state law when they made their transfers.

No amount of legal analysis will change those facts.

Rick Esenberg said...

You are staying on message but I think its too cute by half. What Doyle did was accuse Green, not of taking a position that had been accepted by the SEB and which was now rejected by the SEB, but of being some kind of corrupt scofflaw. The principal value in this was not to deny Green the 400k. It was to neutralize Doyle's poor image on ethics. I recognize that politics ain't bean bag snf ferw people will take the time to understand what really happened, but Green was done raw on this.

Seth Zlotocha said...

You're right, we're just not going to see eye-to-eye on this. But there is a difference on the limit violation between what Barrett did and what Green did.

Importantly, Barrett's move was in 2001, which was prior to the BCRA. At that time, the FEC allowed use of federal campaign funds for any lawful purpose except personal use, which included blanket "conversion" of funds to state campaign accounts, and that's something the SEB allowed in its ruling on the Barrett case. With the onset of the 2004 BCRA amendment, however, the only form in which the funds could be transferred from federal to state was through a "donation." Therefore, since Green's move was considered a donation while Barrett's was deemed a conversion, Green was subject to the contribution limit while Barrett was not. This is all laid out in the DOJ's case, and none of it -- to my knowledge -- has been refuted by Green's camp.

Anonymous said...

Elliott, read all the way through this thread -- if I'm on the jury, I think you want Seth for your lawyer.:-)

Rick Esenberg said...


With all due respect (and I have lot for you), I feel a bit like a native of Mexico City trying to tell someone that their Spanglish is sounds like the real thing but is not.

DOJ and Judge Neiss believed that BCRA had changed the law. That may have been the case for a brief period after the BCRA was enacted in 2002 because, in the law's immediate aftermath, the FEC read it to prohibit these transfers.

According to the FEC ruling, the 2004 amendments reflected a congressional determination that it had not been Congress' intent to prohibit the transfers and to make clear that the transfers would be permitted as long as state law did not prohibit them. If you look at pp. 6-7 of the ruling, the commission argues that the 2004 amendments were designed to return to the pre-BCRA treatment of federal-to-state transfers. It notes that the commission recommended the addition of the provisions at issue "to mimic" the FEC's previous regulations on these transfers in the face of what it thought was an inadvertent narrowing of the use of those funds by the BCRA in 2002.

The limiting language "as permitted by state law" was, the FEC says, designed to advise that state law was not preempted by the BCRA (as it sometimes can be by a federal statute)so that the transfers would not be permitted if state law prohibits them. But that did not change pre-BCRA state law (i.e., the law which applied to Barrett) which. of course, could not have been preempted by a BCRA that did not yet exist. In other words, the Barrett transfer had to comply with state law as well. The only impact that the 2004 amendments could have had on the 2001 SEB ruling is if the SEB had erroneously assumed that state law was prempted in the area of state to federal transfers.

But on what we now know is the key question - does state law prohibit the Barrett/Green transfers - the BCRA has nothing to say. DOJ did not argue that there were permitted conversions and prohibited donations. It argued that 1) the Barrett ruling was wrong and 2) it was superceded by the BCRA. In either event, according to DOJ, neither the Barrett nor Green transfers coud happen.

The former argument might be right but it is inconsistent with the FEC ruling which reads the 2004 amendments as permissive and not restrictive. The latter could also be right, but it is a matter of state law about which the BCRA has nothing to say.

If you think about it for a moment, what you say is internally inconsistent. Green and Barrett did precisely the same thing and Green was ordered to return, not all contributions over 43k, but those that were raised from non-Wisconsin PACs. Why would we call it a conversion in one case and a donation in the other?

Second, if federal law was amended to permit that federal funds could only be transferred in the form of donations that are in accordance with state law, then why wouldn't a donation in violation of atate law also be a violation of the federal law that prohibits them? Why would the FEC say that it is not?

I assume that you are not a lawyer and that following this stuff is not something that you have been trained to do. I give you credit for trying. But you just aren't right.

Anon 8:41

This is a question of law that would never be put to a jury of nonlawyers. If you read this thread, you might begin to understand why.

XOut said...

At least you are consistent XOff – wrong, self-serving, but consistently wrong and self-serving.

Seth Zlotocha said...

The legal landscape did change between 2001 and 2005. Prior to the BCRA, federal campaign money could be used for any lawful purpose aside from personal use. After the BCRA amendment in 2004, federal campaign money could only go to a state campaign in the form of a donation. The SEB in 2001 felt that a blanket "conversion" of funds from federal-to-state was possible. The state DOJ disagrees with that reading of state law, but it rightly said the point became moot in 2004 when the BCRA was amended to make it clear that only donations were allowed subject to state laws. Since the focus was now on donations rather than a conversion, there was no question any more about whether the transferred money was subject to the Chapter 11 contribution limit.

That the FEC says a violation of state law doesn't necessitate a violation of federal law says nothing about whether or not the legal landscape changed under the BCRA. For Wisconsin it did since it became unquestionably clear that any transfer from federal-to-state was a donation and therefore subject to the contribution limit. But just because the contribution limit was violated doesn't mean the BCRA was also violated -- that's all the FEC found in its ruling.

To claim that the 2004 amendment gets us completely back to pre-BCRA rules on federal-to-state transfers is to ignore the amendment's use of the word "donation." All the FEC said was that it recommended allowing some form of transfers between federal and state coffers -- it said nothing about what form this transfer should come in. But perhaps the use of "donation" as opposed to "conversion" or even the more ambiguous "transfer" was inadvertent and Congress meant to say the move could take place in any form, but the fact is that's not what it said.

And, furthermore, the 2004 amendment was slipped into 3,300 page spending bill at the last minute, which suggests to me there wasn't wide agreement on any legislative intent. As Feingold put it at the time: "My main objection to the provision, secretly inserted in the omnibus appropriations bill, is procedural. A small group of congressional leaders making decisions behind closed doors will not have the support or confidence of the public, regardless of their merit."

But if you want to pull out the lawyer card, Rick, that's just fine. But those folks at the DOJ who are argued the same thing as me are lawyers just like you. You think this FEC ruling undercuts their argument, but I'm just not seeing it.

Rick Esenberg said...

Since the focus was now on donations rather than a conversion, there was no question any more about whether the transferred money was subject to the Chapter 11 contribution limit.

Seth, that's a made-up distinction. There is no such thing as a conversion under state law. There are only "contributions" and the question is whether a federal-to-state transfer is one of those.

You are right that pre-BCRA, the FEC broadly permitted federal-to-state transfers. Its ruling on the Wisconsin Democracy Campaign complaint was to the effect that, in light of the 2004 amendments, federal law on these transfers is exactly as it was pre-BCRA. The upshot is that BCRA neither expands or restricts the extent to which they are permitted.

You seem to be assuming that there was some pre-BCRA law that exempted federal to state transfers from state law restricitons. There was not. No one claims there was. There was no pre-BCRA federal rule that exempted conversions, donations, contributions or whatever you want to call these from state law. The question pre-BCRA and now, if you think the FEC's ruling is right about the 2004 amendments, is whether the transfers violate state law. Once the SEB said they didn't. Now it says that they do.

As far as the DOJ guys being lawyers, the problem is that you are not accurately describing their argument. You are making distinctions that neither they nor Judge Neiss made and attributing significance to things that they did not claim to have the importance that you attribute to it.

The way in which the FEc ruling undercuts DOJ's argument is this: DOJ said that the BCRA and the 2004 amendments are restrictive, i.e., they prohibit everything they do not permit. The FEC said that they are permissive, i.e., they do not establish a federal prohibition of transfers that do not fall within their scope.

If you are a real glutton for punishment, go back and read what DOJ wrote. They said that the BCRA established a federal prohibition of these transfers unless they were in conformity with state law. They said that Green's transfer violated federal law. They said that a federal to state transfer could not exceed $43,128.00. The FEC rejected all of that.

I don't mean to pull out the lawyer card but there is a point at which I don't know what else to say. Spanglish is neither english nor spanish.

The problem, I think, is that you are trying to hang on to too much. It was certainly plausible to argue that state law prohibits both the Barrett and Green transfers. (I don't think you can say that one was ok and the other wasn't. They stand or fall together.)

I even think it was colorable (although, in my view, wrong) to argue, as DOJ did (and as Judgfe Neiss held), that the 2004 amendments incorporated state law into federal law. But I don't see how you can't say that the FEC ruling is consistent with that.

You can, of course, argue that the FEC got it wrong and, for all I know, WDC will seek review of its determination. Maybe, in the end, it will prevail.

But whether or not it does, you just cannot say that the law clearly precluded such transfers such that Mark Green was acting in bad faith or in intentional disregard of the law. I don't think you can claim that the dispute reflected in any way on his ethical judgment.

But that's exactly what Doyle did and it stunk. You ought to admit that. You can still argue against these transfers.

Seth Zlotocha said...

There is no such thing as a conversion under state law. There are only "contributions" and the question is whether a federal-to-state transfer is one of those.

That's not the way the SEB ruled in 2001 in the Barrett case. According to the DOJ: "The Board ruled in favor of Barrett, basing its ruling on the reasoning that the transfer of federal funds constituted a 'conversion' of the funds rather than a 'contribution.' "

The problem with Green claiming he's relying on this 2001 ruling is that the legal landscape changed between then and 2005 when he made his transfer. Due to the 2004 BCRA amendment, only donations were allowed in federal-to-state transfers. There was no longer any way the SEB could continue to interpret (or misinterpret, as the DOJ argued) that a "conversion" not bound by contribution limits was legally permissible under state law.

And who cares if the DOJ believed the move violated federal law and the FEC didn't? The point is that it certainly violated state law due to the changes that were instituted at the federal level.

Rick Esenberg said...


I am a teacher at heart so I'll try one last time.

Look at the relevant state statutes and tell me where you find the term "conversion." (Tell me, for that matter, where you find the word "donation.") The relevant term is "contribution." The SEB in 2001 bought into the argument that giving money to yourself is not a contribution. Not the only possible conclusion, but a plausible one. It did so as a matter of state law.

When the BCRA was passed, it did not say that whether or not a conversion or a "donation" was a "contribution." That is a state law question on which it is silent and which the FEC ruling has made clear is within the sole prerogative of the states. Wisconsin is free to permit wholesale federal to state transfers or not. The FEC and the BCRA do not prohibit it. Thus the transfer of funds in excess of $ 43,128.00 does not violate federal law and federal law has nothing to say about whether it violates state law.

The FEC ruling also makes clear that states are free to prohibit such transfers. Neither it nor the BCRA will stop them. The technical term that the FEC used is that state law is not "pre-empted."

What this means is that, contrary to what DOJ argued and Judge Neiss held, the BCRA after the 2004 amendments did not change the legal landscape. It leaves the question of federal to state transfers to the states. Your argument (it was not DOJ's; you misunderstood that)that state law was somehow changed because of changes at the federal level was expressly rejected by the FEC.

In fact, you are making a kind of category mistake. Federal statutes do not amend state law. They can pre-empt state law but the FEC has made clear that's not so in this case. They can, subject to certain constitutional limits not present here, prohibit things that are permitted by state law, but the FEC ruling makes clear that this is not so here. They might even change state law were state law to adopt some term defined by federal law but that's not so here.

But they don't change state law by some kind of osmosis. The FEC has held that the BCRA as amended does not federalize the applicability of state limitations to conversions.

If, as you say, the BCRA prohibited conversions and permitted only donations and mandated the conclusion that a federal to state transfer is a conversion, then Green's transfer of an amount in excess of $43128.00 would have had to violate federal law because a violation of federal law is all the federal statute can create.

I understand that you want to hold on to the notion that Green was "bad" as opposed to, at worst, mistaken as to what the law permitted. But it just doesn't work.

Seth Zlotocha said...

I never said the BCRA changed state law. What I said is that it made federal-to-state transfers applicable to the contribution limits under Chapter 11. As Niess put it in his ruling: "In short, a donation...is a 'contribution' subject to the limitations and other regulations contained in Chapter 11 of the Wisconsin statutes governing the use of money in Wisconsin political campaigns."

The SEB determined that Barrett's transfer did not apply to Chapter 11 because it was a conversion, not a contribution. Green didn't have that luxury because the BCRA necessarily made his transfer a donation.

And, for the record, I don't think Green was "bad." I do think he honestly thought he wasn't doing anything wrong, at least initially. But then he got called on it -- not by Doyle, but by the WDC, which is by no means a Doyle-friendly group -- and he made the political choice to plow forward with fighting it in the hopes that he could make it into an advantage by arguing that "Doyle's SEB" was just out to get him. That's not being "bad," it's just -- in my view -- being politically stupid, particularly when you consider that's when it came to light that he really should've given back much more than the $460K the SEB asked him to divest.

Rick Esenberg said...


You can't really cite Neiss' opinion because he held that there was a federal law violation - something the FEC made clear could not be the case.

And if the BRCA did not change state law and if it did not itself prohibit the transfer (because, if it did, there would have been a federal law violation), then the "new" legal landscape was the same as the old legal landscape.

But, on this issue, I am going to say, as we Episcopalians do every Sunday, go in peace to love and serve the Lord.

As far as your political point, I have wondered the same thing. I do think that, in the end, the controversy was not worth $ 400,000. But I suspect the thought he was in a box once the SEB ruled. Doyle was going to roast him on it and he needed vindication.

On the other hand, as a political consultant, I'm a pretty good lawyer.

Seth Zlotocha said...

I didn't cite Niess for his take on federal law, but rather as evidence that a donation is equivalent to a contribution under state law, which is something Niess is an appropriate person to judge (no pun intended).

And I still maintain that it makes no difference that Green didn't violate federal law. As far as the FEC is concerned, his transfer was a donation, which is permissible under federal law. Whether or not that donation violated a state law is not the FEC's concern.

Perhaps you're right about the legal landscape not changing, but there is still a difference between Barrett and Green. Barrett's transfer was considered a conversion that's not subject to the contribution limit, while Green's could only be a donation that is subject to the contribution limit.

But, as you suggest, I'll go now. I'm not a religious person, so I'll leave the serving the Lord part, but I'll graciously accept the peace and love -- we can use as much of that as we can get in the blogosphere.

Anonymous said...

Now, there you have hit the mark: "As a political consultant, I make a pretty good lawyer."

Politically, Green's decision probably cost him more votes -- distracting him and his campaign as well as not getting his message through the clutter of headlines about this -- than even all that money would have "bought" in terms of advertising.

And he ended up not being able to use most of it, anyway. You and Seth can swing dance (or whatever you Episcopalians do) on the head of a pin until the gavel comes down -- but politically, the questionable decision was not by any board or commission but by Green.

Put it this way: Rick, you think that what Green did was okay under both federal and state law. Given that, would you want to see the next GOP gubernatorial candidate in this state do the same as Green did, again?