Democracy 21 and Campaign Legal Center Provide DOJ with Precedent to Support May 27th Request for Investigation of Bush Super PAC Scheme
In a letter sent today to the Justice Department, Democracy 21, joined by the Campaign Legal Center, provided the Department with precedent to support the request the groups made in a May 27th letter calling on the Department to investigate potential campaign finance violations involving Jeb Bush’s Super PAC scheme. The groups are also monitoring other presidential campaigns and plan to bring other cases to the Justice Department as the election unfolds.
The new letter pointed out that Attorney General Janet Reno established a Campaign Finance Task Force to investigate allegations of illegal fundraising during the 1996 presidential election, and also brought in Charles La Bella, an outside attorney from the San Diego U.S. Attorney’s office, to head the Task Force investigation.
In a 1997 memo to Attorney General Reno, La Bella strongly rejected the suggestion of sending the campaign finance matters to the FEC, saying that the agency is “an impotent organization which cannot agree on a course of action with respect to the simplest of matters within its jurisdiction.” Eighteen years later the FEC is in the word of its own chairwoman, “worse than dysfunctional.”
The watchdog groups also stated in today’s letter that Jeb Bush’s formal declaration of his presidential candidacy scheduled for June 15th has no effect on the allegations made in their May 27th letter, because as documented in the letter, Bush already has been a candidate for some time as “candidate” is defined by federal campaign finance law.
The new letter also noted that the allegations in the May 27th letter involve violations of the Bipartisan Reform Act of 2002 (BCRA) that are entirely separate from, and different than, the rules that prohibit coordination between candidates and outside spending groups.
Some observers have mistakenly said that the allegations in the May 27 letter sent by Democracy 21 and the Campaign Legal Center are based on violations of the coordination rules.
The BCRA provisions cited in the May 27 letter were enacted to prevent officeholders and candidates from directly or indirectly circumventing the provisions in BCRA that prohibit officeholders and candidates from raising and spending soft money in federal elections.
These BCRA provisions prevent officeholders and candidates from using alter ego entities, such as Right to Rise Super PAC, to circumvent the soft money restrictions.
According to Democracy 21 President Fred Wertheimer:
Candidates and their political operatives constantly stretch, if not break, the campaign finance laws, based on their beliefs that no one is going to enforce the laws. This is clearly happening in the 2016 presidential elections, as presidential candidates and their political operatives know that the Federal Election Commission is a dysfunctional, paralyzed agency.
If the Justice Department does not act to enforce the campaign finance laws, we can expect to see in the 2016 presidential election the most massive campaign finance violations in the nation’s history. As much as $1 billion or more in unlimited contributions is likely to be illegally spent to in the presidential election.
The American people surely deserve better than to have the next president of the United States elected to office on a flood of illegal campaign money. The Justice Department must act to prevent this from occurring by taking steps to investigate potential campaign finance violations and to enforce the campaign finance laws.
The following are excerpts from letter sent today by Democracy 21 and the Campaign Legal Center:
As explained in the May 27 letter, the evidence we set forth supports the conclusion that Bush is and has been a candidate, that Bush and his agents have “directly or indirectly established, financed, maintained or controlled” the Right to Rise Super PAC, and that Bush and the Super PAC are acting in violation of the law in soliciting, receiving, directing and spending funds that do not comply with federal contribution limits. 52 U.S.C. § 30125(e)(1). The potential violations are in the tens of millions of dollars, or more.
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We are writing to make clear that Bush’s formal declaration of candidacy has absolutely no effect on the allegations made in our May 27 letter requesting an investigation of the Bush Super PAC scheme. In the letter, we showed that Bush already is, and has for some time been, a candidate for federal office under the statutory definition of “candidate” set forth in the federal campaign finance laws.
Bush cannot evade the statutory definition of “candidate” by proclaiming he is not a candidate.
Our May 27 letter stated that as a candidate, Bush is violating the provisions in the Bipartisan Campaign Reform Act of 2002 (BCRA) that prohibit a candidate from directly or indirectly establishing, controlling, maintaining or financing an entity that raises or spends contributions not subject to federal limits. Bush is violating those provisions now. And even after he formally declares his candidacy, Bush will continue to be violating the BCRA provisions we cited in our letter.
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We also are writing again to emphasize the Justice Department’s responsibility to address the alleged violations we set forth in our May 27 letter and to enforce the campaign finance laws. As we noted previously, federal law gives the Department express jurisdiction over “knowing and willful” violations of the campaign finance laws, which appear to have been committed here. 52 U.S.C. § 30109(a).
In determining the Department’s response to this matter, we would like to bring to your attention directly relevant precedent that strongly counsels in favor of the Department undertaking an investigation of this matter — a matter that involves allegations of serious campaign finance violations by a leading presidential candidate.
In October 1996, Common Cause sent a letter to Attorney General Reno, calling for the Attorney General to appoint an independent counsel to undertake a criminal investigation of whether both major party presidential candidates in the 1996 election, President Bill Clinton and Senator Robert Dole, were engaged in knowing and willful violations of federal campaign finance laws by raising and spending tens of millions of dollars of “soft money” during the 1996 campaign. Fred Wertheimer, one of the signatories to this letter, was counsel to Common Cause on that 1996 request to the Justice Department for an investigation, along with Don Simon, who is currently counsel to Democracy 21.
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In response to the Common Cause letter, Attorney General Reno initiated an investigation of the allegations set forth therein, as well as of other alleged campaign finance violations in the 1996 election cycle. A report prepared by the General Accounting Office for the House Judiciary Committee noted that Attorney General Reno set up a special task force to conduct that investigation. The report stated, “Created by Attorney General Reno in December 1996 within the Criminal Division’s Public Integrity Section, the [Campaign Finance Task Force] was established to investigate allegations of illegal fundraising during the 1996 presidential election.” (GAO, “Campaign Finance Task Force: Problems and Disagreements Initially Hampered Justice’s Investigation,” GAO/GGD-00-101-BR (May 2000) at 1.)
The report notes that by November 1997, the Task Force had a staff of 126 persons assigned to it, including 24 attorneys, 67 FBI agents and 35 support staff. Id. at 48. By March 2000, the Task Force had initiated 24 prosecutions and obtained 16 convictions. Id. at 43.
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Ultimately, Attorney General Reno decided not to appoint an independent counsel to pursue the allegations made by Common Cause (for reasons unrelated to the facts presented to the Department). But it is important to recognize that this decision was only made after the Justice Department itself had conducted a thorough review of the allegations made by Common Cause.
It is clear from the investigative documents subsequently released in that matter that the Justice Department fully examined the allegations, and did not simply assume that any illegal campaign activity would be adequately addressed through civil enforcement by the Federal Election Commission (FEC).
Attached is a memorandum to Attorney General Reno about the Common Cause allegations, dated November 25, 1997, from Charles G. La Bella, who was the supervising attorney for the Campaign Finance Task Force. … Most pertinently, La Bella focuses on the need for the Justice Department itself to conduct an investigation. In the memorandum, he discussed at length a debate within the Department about whether the Common Cause allegations should be referred to the FEC for investigation.
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La Bella strongly rejected the suggestion of sending the matter to the FEC:
Although the proposal sounds reasonable on its face, what troubles me is that everyone in attendance at the meetings has told me, in no uncertain terms, that the FEC is an impotent organization which cannot agree on a course of action with respect to the simplest of matters within its jurisdiction. Indeed, they have told me that the FEC is — and in all likelihood was intentionally designed to be —weak and ineffective. And yet, these same people urge that, in the face of extraordinarily serious allegations, the FEC is the “expert” in the field to whom we must, in the first instance, defer for “a preliminary scrub” of the issues.
I think that such a course of action is ill advised for a variety of reasons. On the most practical level, the FEC is not an investigative agency. … [I]f the matter is sent to the FEC, it is unlikely that the matter will see the light of day in our lifetimes plus 99 years.
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What Mr. La Bella said about the FEC in 1997 — that it is “an impotent organization which cannot agree on a course of action with respect to the simplest of matters within its jurisdiction” — is truer today than it was then. In the intervening years, the FEC has progressively succumbed to an ideological polarization that has left the agency, in the words of even its own chairwoman, “worse than dysfunctional.” (E. Lichtblau, “F.E.C. Can’t Curb 2016 Election Abuse, Commission Chief Says,” The New York Times (May 2, 2015).) The FEC is not a publicly credible enforcement agency.
The American people are facing a national election in 2016 in which massive campaign finance violations are likely to occur. They are entitled to effective enforcement of the campaign finance laws enacted to protect them against corruption of their government and of federal officeholders. Given the complete dysfunction of the FEC, the only place that such enforcement can occur is the Justice Department.
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We strongly urge you as the nation’s chief law enforcement officer to take the enforcement steps necessary to protect the integrity of our democracy and of our elections, and to ensure that the nation’s campaign finance laws are not violated with impunity.
