Dear DelBene: When you're in a hole, stop digging.
Yesterday, I
posted a diary about a major problem facing Democrats in Washington's First District: one of the leading candidates, Suzan DelBene, failed to file a necessary disclosure form within the proper time frame. In a nutshell, she needed to file a personal disclosure form for the House Ethics Committee no later than 30 days after spending over $5,000 on her campaign in 2011. Despite spending over $5,000 in the first quarter of 2011, she still has not done so.
This is no laughing matter, because failure to do this constitutes a felony that can be referred by the Republican-controlled House for investigation by the Department of Justice. In a close House race in a swing district, allowing the Republican to say that his Democratic opponent is under investigation for a felony would essentially guarantee a Republican victory.
Well, the DelBene campaign responded to my post...badly. An employee of the campaign, Viet Shelton, emailed me as follows, essentially claiming that the expenses accrued during the first quarter of 2011 doesn't count because it was a previous campaign cycle, and that Delbene "wasn't a candidate for anything" in 2011. In the interests of honesty, here's the first email:
Dante-
Saw your post about the 1st CD in Washington. I hate to tell you this, but whoever gave you this info is just plain wrong and I have the documentation to back it up.
In short, DelBene wasn't officially a candidate until January of 2012, which means she doesn't have to file her financial disclosure until May 15. Simple as that.
But don't just take my word for it.
Here's the link that states people who qualify as candidates in the election year(in our case, 2012) must submit a report within 30 days of becoming a candidate or by May 15, whichever is later.
http://ethics.house.gov/...
Remember that DelBene declared in January of 2012. http://seattletimes.nwsource.com/...
Now, if you want to dispute this with your mentioned claim about March 2011 expenditures, that's a pretty ridiculous claim. Those are expenditures leftover from her 2010 race. As in, a totally different election from a totally different cycle.
And just so you know, she filed her financial disclosure forms for the 2010 race on time.
We've checked with folks at House Ethics, and tripled checked statute on this. DelBene isn't required to file a financial disclosure until May 15 because she was not a qualified candidate until 2012.
So let me be clear, she wasn't a candidate for anything in 2011. Her disclosure forms are due May 15th of 2012.
If you want to discuss further, I'd be MORE than happy to. Really, anything to get the true facts out there and dispel the misinformation in your post.
Your post is incorrect in its analysis of FEC compliance. And it makes a pretty significant false accusation. I hope you're willing to change it accordingly with the correct facts.
It's hard to know if the DelBene campaign is dishonest or just ignorant. Let's just assume for a minute that Shelton is right about the March 2011 expenditures not triggering the ethics disclosure requirement. DelBene's staff says that she "wasn't a candidate for anything" in 2011.
Really? Then why I do have
this FEC disclosure from the
last quarter of 2011—a quarter in which she spent over $5,000 and thus would have triggered a 30-day requirement to file a personal disclosure form, which she still has not filed? This disclosure, after all, is for DelBene for Congress in the First District of Washington. It's not like she's running for office on the moon.
So how does Viet Shelton respond? By claiming that the FEC's "testing the waters" language allowed DelBene to spend over $5,000 without actually being a candidate. At this point, it is again hard to know if the DelBene camp is being dishonest or plain ignorant. Again, in the interests of disclosure, I'm quoting the email from Viet Shelton in full:
Dante-
Before we go too far down the rabbit hole, I should let you know that we've consulted with election experts, campaign finance lawyers and folks at House Ethics folks to triple check this a while ago. And all concluded we are in compliance and DelBene's financial disclosure is due May 15.
To start, the $5000 threshold is for expenses related to a person's candidacy or 'campaigning', not all spending. DelBene was not a candidate under FECA and the House Ethics manual defers to FEC as to whether a person meets the definition of a candidate.
I've attached some documentation from the FEC candidate guide that should clarify things.
The FEC has a carve-out for “testing the waters” activities that do not trigger candidacy nor registration under FECA. The FEC Candidate Guide explains this exemption:
“An individual who merely conducts selected testing the waters activities that fall within the exemptions in FEC regulations that are discussed in Section 1 below (but does not campaign for office) does not have to register or report as a candidate even if the individual raises or spends more than $5,000 on those activities (i.e., the dollar threshold that would normally trigger candidate registration (which is discussed in Chapter 2)).”
So expenditures during the last quarter of 2011 are “testing the waters” expenses, NOT promoting her candidacy, cause she WASN'T a candidate. The district lines were not drawn until the very last hours of 2011 and Suzan was not a candidate until 2012 (when she filed her Form 2).
As for the Q1 2011 disbursements, they were leftover expenses from the 2010 campaign in the WA08. Thus the reason why the forms were labeled for the WA08, cause that was what she was running for the PREVIOUS year which she did file disclosure forms for.
Under your logic, all losing campaigns that are spending the following year(and wrapping up expenses, as many campaigns do) have to file a new financial disclosure report for a race they aren't even running in but because of costs from the race they just lost. That doesn't make sense or make them a candidate for anything.
Hope this helps.
The other option for the DelBene communications team is that they simply do not know how to read. Rather than summarizing my response here, I'll just quote it in full.
Viet,
This is not my first rodeo. Your "testing the waters" defense does not apply here. To begin with, "testing the waters" exempts an individual from having to file with the FEC. It does not allow a committee that has filed campaign expenses with the FEC to claim that those expenses are retroactively not campaign expenses. These are expenses that your campaign filed with the FEC; hence, they are campaign expenses, not testing the waters expenses.
Secondly: even if you wished to claim that these expenses were only for testing the waters and you mistakenly filed an FEC report, it doesn't change the fact that the expenses you reported were for staff (Nicholas Jackal) and a voter file (NGP VAN). These are not "testing the waters" expenses along the lines exemplified by the FEC, such as travel and polling.
And even if there were disputes on these issues, allow me to quote directly from the "testing the waters" provisions you are citing:
"Certain activities, however, indicate that the individual has decided to become a candidate and is no longer testing the waters. In that case, once the individual has raised or spent more than $5,000, he or she must register as a candidate. Intent to become a candidate, for example, is apparent when individuals:
- Make or authorize statements that refer to themselves as candidates (“Smith in 2012” or “Smith for Senate”);"
Your campaign filed a Q4 2011 FEC report wherein you spent over $5,000 under the byline "Delbene For Congress"--the EXACT example the FEC guidelines stipulate as a declaration of candidacy, as well as spending an amount that would have triggered a 30-day disclosure requirement.
Consequently, I am confident in my assertion that your "testing the waters" defense does not apply. I am not sure what assurances you have gotten from the Ethics Committee; if, however, you have gotten written assurances from the FEC or the Ethics Committee that your specific case will not result in problems (not based on the narrative you have advanced regarding "testing the waters," but a ruling regarding the specific filings made by your campaign), I would be more than happy to see it. Otherwise, I stand by my assertion that your campaign is at severe risk of being the target of a politically motivated ethics complaint that could severely damage your candidacy and risk handing the seat to the Republican, should you advance to the general.
The DelBene camp has a major problem. Not only is their campaign guilty of a substantial ethics violation that could doom them in a general election, but their campaign staff seems, at face value, to be at least incompetent, if not worse.
Now, I stand by my original comment to Shelton: if they can produce evidence that the Ethics Committee has promised them that given all the evidence, they still have nothing to worry about, I will post it. Until then, I stand by my assertion: DelBene can be easily damaged by a Republican in a general election, and she is not the safe choice for Congress, despite her ability to self-fund. Democrats who are supporting her for those reasons should seriously contemplate going in another direction.
