May 13, 2012

Loophole in Clean Election law allows private funds

The loophole enabled publicly financed candidates to raise a combined $21,860 between January and March.


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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:


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