Tuesday, March 23, 2010

L'Affaire ASA: Not What It Seemed To Be

During the 2009 Milwaukee school board elections, there was a dust-up over the activities of a group called Advocates for Student Achievement.The group encouraged people to run for the school board and formed a PAC that supported certain candidates. ASA was perceived to be a threat to the teachers' union and a public employee union front called Citizens Action filed a complaint claiming that it had violated campaign finance laws. This week, ASA agreed to pay $5000 to resolve a civil complaint filed by the District Attorney's office.

I paid little attention at the time but a few weeks ago, I was asked to consult with the ASA board on the matter. Essentially, I took an independent look at the case, advised on the impact of Citizens United on the case and attended one meeting with John Chisolm and Bruce Landgraf, along with ASA's counsel of record, Mike Maistelman. I did not negotiate the settlement or advise the group whether or not to accept it. (I express no opinion on that.) I acted on a pro bono basis and received absolutely nothing for whatever service I provided.

I don't intend to criticize the DA's office. It seems to be hearing different things from different people and some of it may not have withstood the scrutiny of trial. District Attorney Chisolm and Assistant District Attorney Landgraf should be commended for realizing that this was not a criminal matter and that the folks associated with ASA were well meaning. There were powerful political incentives for them to go another way. But, notwithstanding my somewhat different view of the case, I do believe that they played it straight.

Some of its case was impacted by Citizens United and the people involved with ASA - who were not political pros - did not handle this type of thing (the combination of a 501(c)(4) with a PAC) in the way that pros do. They had some bookkeeping snafus and may have slightly exceeded the contribution limits.

My remarks here are not intended to be "on behalf" of ASA. While I would not, given the fact that we did have an attorney-client relationship, disclose confidential communications or say anything that they objected to, these views are my own.

Whatever mistakes the ASA people made, the more serious threat to public participation has been presented by its critics. In particular, the horror over ASA exhibited by local bloggers and that august organ to the 1-900 community, the Shepherd Express, is misplaced. A close look at ASA shows that the matter was much ado about very little and the full court press against ASA by Citizens Action and the Crazy Shepherd was nothing but an assault on unwanted public participation in school board elections. The folks at ASA should have been more sophisticated. Lou Fortis, Lisa Kaiser and all of the usual suspects should be ashamed of themselves.

ASA was formed to encourage people to run for school board. In what it referred to as "phase one" of its activities, it offered information to anyone who wanted to run. It turned down no one. It commissioned some issue papers written by lefty blogger Mike Mathias and made them available to anyone who wanted them, posting them on the group's website. There is nothing even arguably wrong with that.

Three of the people who went through the ASA process decided to run. ASA ultimately decided to support them (even though certain of its principals had major substantive differences with at least one of the candidates) and contributed the maximum amount to each through its PAC. There is nothing wrong with that.

However, ASA continued to run what appears to have been a "support group" session for the three on Saturday mornings lead by a person who had previously run for the school board. (They also invited a non-ASA endorsed candidate - Mike Mathias - but he did not participate.) This, in and of itself, would not have been a problem. The group leader was a volunteer and received no money - but ASA's PAC did pay something between $100 and $200 for coffee and donuts at these meetings. If this is regarded as a "contribution" to the campaign of the three (not a self evident proposition), then the ASA PAC would have exceeded the contribution limit for each by something less than $ 100.00 each.

The Shepherd Express is still saying that ASA "commissioned a $12,000 poll to discredit opposing candidates." It repeats Citizen Action's allegation that the poll results were supplied to the favored candidates and couldn't be accessed by the opponents of those candidates.

Here is the truth. ASA did commission a poll but did it independently without the input of any of the candidates. While there have been accusations that this was a push poll that was being used to discredit opposing candidates, I have read the survey instrument. It think I know what a push poll is. It wasn't a push poll.

But even if it was, after Citizens United, independent push polls are constitutionally protected. They constitute express advocacy.

The other allegation is that the poll - because the results were provided to the candidates - constituted an in-kind contribution. Wisconsin law, GAB 1.65(2) does provide that "transfer to a candidate or committee of the results of a poll or survey, other than by a sale, is an in-kind contribution." But there are a few problems.

The topline results were provided to the three candidates. But 48 hours later, they were released to the world. Now, you could argue that the rule makes any poll made available to any candidate an in-kind contribution, but that is an absurd construction. By that reasoning, ASA would also have made a contribution to the opponents of the three because they had access to the topline results as well. It would also seem completely incompatible with the Supreme Court's doctrine on independent advocacy. Commissioning and publishing poll results is constitutionally protected speech.

It might be different if there had been results that were shared with the three candidates but not with the world. It might be different had the three candidates participated in the formulation of the poll. But it appears that neither is the case. Unless one thinks it's legally significant that the poll was "leaked" to the three two days before it was shared with the world (one of those legal propositions too silly to waste time on), the poll would support no violations.

Finally, there were a number of things done "by ASA" that constituted express advocacy (although not much), advice or fundraising. But, as Citizens United has told us, ASA was free to engage in express advocacy. Second, although these volunteers may have given advice to candidates, that isn't an in-kind contribution either. I have given (solicited and unsolicited) to candidates. Was that a campaign contribution ? Third, the fundraising consisted of communications by volunteers who identified themselves as associated with ASA. It appears that no corporate funds were used so there could be no in-kind contribution. What was important is that the funds - if they were to be contributed to a candidate - be properly channeled through a PAC. They were. If volunteer activities by persons associated with a corporation or union are going to be considered in-kind contributions, then WEAC is going to need its own wing at Taycheedah and Waupun.

Now, to be sure, professionals would have been more careful to distinguish between who was doing what. Although ASA has been characterized as a dark conservative conspiracy, it appears that all but one of the board members voted for President Obama (this was a great disappointment to me - such nice and intelligent people - but let a thousand flowers bloom). These were people who received nothing for themselves and who were trying to do what they thought was good for the community. That they have had their reputations dragged through the mud by a partisan group and a notoriously irresponsible tabloid is a shame.


Anonymous said...

Louis Fortis is a dictator at the Shepherd. It's unfortunate that David Luhrssen continues to fall for Fortis' leadership (that's definitely the wrong word). Fortis continues to lose the respect of the city's most prestigious movers and shakers. He's an idiot (that's not the right word either).

Anonymous said...

"Louis Fortis is a dictator!" This is rich. Of course Screwy Louie is the dictator -- he owns the rag!

There are two reasons why ASA got off with a wrist-slap:

1. The woman who runs ASA is an idiot. (I am being charitable by not naming her.) The prosecutors figured out that the moment they first talked to her.

2. ASA hired the best election lawyer in the state.

Rick Esenberg said...

My initial reaction was to delete the comment of Anon 9:56 but I am going to leave it up as an example of why I am almost ready to ban anonymous comments.

You are not being charitable, but wise in refusing to divulge your identity while taking gratuituous shots at others. That you will not put your name behind your comment speaks volumes.

The ASA folks that I met (including its Executive Director) were all sharp as nails. I have had few clients (and remember I mostly have represented big old corporations) who have done a better job of efficiently, comprehensively and candidly communicating the nature of their problem. We should encourage people like this - not one of whom had a thing to gain - from being engaged in public affairs.

None of my criticism of this comment is intended to reflect on its second point regarding Mike Maistelman. He is a good lawyer and I am sure that he did a good job. But none of his ASA clients are "idiots."

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