Last week I called upon the Office of Campaign and Political Finance to disallow testimony from the Massachusetts Fiscal Alliance on the “incidental expenditures” rule making because MassFiscal has ignored OCPF’s directive in CPF 16-20 to disclose a single donor. OCPF disregarded my advice, which is just fine. Their call. But there may be a deeper consequence, one we’ll call “The MassFiscal Precedent.”
Here is a caution: I’m not a lawyer (I used to be, a long time ago) and I’m no expert on the laws and regulations governing OCPF. I’m going here only by what the OCPF web page concerning Agency Actions says. It outlines three escalating responses OCPF can take after finding a violation of state law: Public Resolution Letters, Disposition Letters, and Referral to the Attorney General.
CPF 16-20 is a Public Resolution Letter. That kind of letter can be either an “an educational letter or a requirement that some corrective action” be taken. MassFiscal spokesperson Paul Craney says it is just an “educational letter” so they can ignore it. That is not credible because by August 2016 MassFiscal had, over four years, filed thirty Electioneering Communications reports concerning dozens of candidates involving over $300,000; and it has top notch legal counsel. CPF 16-20 is actually a requirement to disclose. But OCPF would know what it intended. Which is it, OCPF?
The practical effect of MassFiscal’s interpretation is that parties may ignore outcomes they do not like. MassFiscal’s noncompliance means that Public Resolution Letters are rendered nullities for enforcement purposes. Given that a Disposition Agreement is also a “voluntary agreement” MassFiscal’s defiance doesn’t leave much option but for OCPF to refer matters to the Attorney General whenever a party like MassFiscal refuses to comply, and referral to the AG is just not going to happen often. That is a terrible situation for OCPF and for the rule of law. But it’s The MassFiscal Precedent.
OCPF obviously wields a lot of power. Just ask these dark money groups: collapsed-in-corruption Families for Excellent Schools, out of business thanks to OCPF; Strong Economy for Growth, out of business thanks to OCPF; and the Horse Racing Jobs and Education Committee, out of business thanks to OCPF.
If I was still an attorney and I had a client ordered to disclose dark money donors by Public Resolution Letter or Disposition Agreement, unless I thought it would go to the AG, my advice would be: Blow off OCPF! It’s the MassFiscal Precedent!
“We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.” – Justice Louis D. Brandeis
[Full disclosure: as an educator in the UMass system, I am a union member. I write about dark money (and other things)].