For more than a decade, critics have complained of a loophole in Maine’s Clean Election law. Candidates who pay for their campaigns using taxpayers’ funds — and thus avoid accusations of being beholden to special interests — can and do raise thousands of dollars in private donations for their personal political action committees, or “leadership PACs.”

The problem isn’t going away, with substantial sums being raised months ahead of State House primaries.

From January to March of this year, 11 legislators who ran or are currently running as Clean Election candidates raised a combined $21,860 from lobbyists, corporations and individual supporters, according to disclosures filed April 20 with the state ethics commission. For a sense of scale, each Clean Election House candidate will run their general election campaign on a state payment of $3,937, a state Senate candidate, $18,124.

While prohibited from spending funds raised for their leadership PACs on their own campaigns, candidates are free to dispense them to the campaigns and PACs of their political allies and party. PAC owners can also reimburse themselves for non-campaign travel expenses, and can buy ads for or against candidates in other races, including those between other Clean Election candidates. In theory, funds given to other PACs could also be used as “independent expenditures” to boost the very candidate who initially raised them, or to attack their opponent.

“It’s a classic loophole,” says Michael Franz, associate professor of government at Bowdoin College. “If the intention was to clear up the connections between donors and the influence of money, this does violate the spirit of the law.”

Leadership PACs controlled by Clean Election candidates also spent $23,924 in the first quarter of 2012, most of it going to state and county party campaign committees or the campaigns of other legislators and would-be legislators.

Among these PACs, the Alfond Business Community & Democracy PAC, controlled by Sen. Justin Alfond, D-Portland, raised the most money this past quarter. The PAC raised $5,970 from 10 donors, including former Democratic gubernatorial candidate Rosa Scarcelli ($2,000); Kevin Mahaney of Olympia Properties ($1,000); Brookline, Mass., pub and restaurant owner David Brilliant ($1,000), and Developers Collaborative Predevelopment LLC ($500), whose members developed several projects in southern Maine, including West Falmouth Crossing and the Chestnut Street Lofts in Portland.

Alfond’s PAC made one donation: $134 to ActBlue Maine, a Massachusetts-based PAC supporting Democratic candidates.

This past quarter, the most generous of these PACs was Cain for Maine, controlled by House Minority Leader Emily Cain, D-Orono, which made a single $7,000 contribution to the House Democratic Campaign Committee. Cain, who is running for state Senate, also raised $250 for her PAC from lobbyists Federle Mahoney and $1,840 in in-kind support from Bernstein Shur, a Portland law-and-lobbying firm. Rep. Jeff McCabe, D-Skowhegan, gave $3,000 to the House DCC via his McCabe for Leadership PAC.

Two Clean Election legislators partially emptied their leadership PACs in anticipation of running for Congress. On March 1, House Majority Leader Jon Courtney, R-Springvale, doled out $4,280 from his Common Sense Solutions for Maine’s Future PAC to 16 recipients, including the Maine Republican Party and seven GOP county committees in the 1st Congressional District, and the campaigns of fellow Republicans Garrett Mason of Lisbon Falls, Andre Cushing of Hampden and state party Vice Chair Ruth Summers. Courtney and House Speaker Robert Nutting, R-Oakland, jointly control another PAC, The Pine Tree Fund, which made no expenditures but received a single $5,000 contribution from U.S. Sen. Susan Collins’ leadership PAC. (Nutting’s re-election campaign is privately financed.)

Sen. Phil Bartlett, D-Gorham, who contemplated a U.S. House bid, gave out $1,600 from his High Hopes PAC last quarter, including $500 to his own abortive congressional campaign. Other recipients included the Senate Democratic Campaign Committee ($1,000) and his party’s committee in Franklin County.

In January, High Hopes had received a $500 contribution from Florida-based NextEra, which owns several Maine power plants and the nuclear plant at Seabrook, N.H. (NextEra also gave $250 to the PAC of another Clean Election candidate, Sen. Barry Hobbins, D-Saco.)

There have been numerous attempts to close the loophole since it was first exploited 12 years ago, including a 2005 bill sponsored by then-Rep. Glenn Cummings, D-Portland, and another in 2011 spearheaded by Rep. Linda Valentino, D-Saco.

“I’m not against PACs, because you need them to fund candidates for House and Senate,” says Valentino, whose bill would have prohibited Clean Election candidates from having leadership PACs. “I’m against people taking taxpayer funds and telling people they are not beholden to any special interests when they have a PAC and are telling people to give them money.”

“I’ve always used Clean Elections because I’m not a rich guy, I work in a paper mill,” says Rep. Lance Harvell, R-Farmington, who supported Valentino’s bill. “One of the things Clean Elections were supposed to do was to give people who don’t have the money a chance to run, so there would be more seats that were competitive. … So the idea that someone can raise $15, $20, or $30,000 for their leadership PAC and yet they ‘need’ Clean Election money — come on!”

According to legislative records, nobody testified against Valentino’s bill when it went before the Veterans and Legal Affairs Committee in March 2011, but committee members recommended it not pass by an 11-3 vote. It was defeated 87-55 in the House after a June 8 floor debate in which several opponents spoke of concerns that it might be unconstitutional.

“My concern is that this leverages that promise of public money in a way that exerts undue cost to free-speech rights,” said Rep. Michael Carey, D-Lewiston.

“We wanted to do something, but the question is, how much do you support the Constitution?” added Rep. Jarrod Crockett, R-Bethel, by way of explaining the committee’s recommendation report. “You either do or you don’t, so in the end that’s why the report was so overwhelming.”

Tara Malloy, senior counsel at the nonpartisan Campaign Legal Center in Washington, D.C., says such free-speech arguments don’t pass the “straight-face test.” She said the Supreme Court has made clear that “when a government provides a subsidy, they are allowed to attach strings” under the First Amendment, as long as the candidate’s acceptance of the restrictions is voluntary.

Cain, who voted against Valentino’s bill, says her objection was not constitutional, but rather that the measure addressed a hypothetical problem, rather than a proven one.

“I think the perceptions around campaign financing are based on what we see on TV from Washington and from national campaigns, but in my personal experience I haven’t yet seen any fuzzy lines or blurred intentions in how the system works in Maine,” she said.

“What’s important to me is transparency and accountability, so people can see who is contributing to leadership PACs like my own and where that money is going.”

“I’m not convinced that if you are a Clean Election candidate and you have a PAC that raises tens of thousands for your leadership campaign that you’re not going to feel beholden to the special interests and lobbyists that hand you that block of money,” said Rep. Ben Chipman, a Portland independent.

He expressed concern that the situation will deteriorate this year in the wake of the Citizens United case, in which the Supreme Court ruled that limits on the amount a donor can give to a PAC were unconstitutional.

“I’m sure this issue will be introduced again, and maybe with what’s going to happen this year with all the money that’s going into PACs, we’ll have more support for it.”

Cain said she said it was important to revisit the issue regularly as Maine’s campaign finance environment evolves. “I would be disappointed if these questions weren’t raised each election cycle,” she said.

House Republican leaders did not respond to interview requests by press time.

Staff Writer Colin Woodard can be contacted at 791-6415 or at:

cwoodard@mainetoday.com