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This page contains a single entry from the blog posted on April 18, 2008 8:27 AM. The previous post in this blog was Death in the family. The next post in this blog is Quotation of the Day. Many more can be found on the main index page or by looking through the archives.

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Friday, April 18, 2008

Branam's last day?

Portland City Council candidate John Branam must be looking over his shoulder, for a while now. A recipient of "clean money" in the "voter-owed elections" municipal taxpayer campaign finance program, he's been on the carpet for payments to staffers that some say appear to violate the program's rules. If there have indeed been violations, then a fine, an order to pay some "clean money" back, or even disqualification, are theoretically possible. Earlier this week, it was reported that the city auditor's office would likely rule on the charges by the end of the week.

It's Friday.

Now, when the city has bad news to break, Friday is its favorite day to do it. Media viewership (like blog readership) drops off around lunchtime on Friday, and doesn't come back strong until Monday. The City Hall types who are supposedly enforcing the "clean money" rules will be embarrassed to announce yet another infraction -- every miscreant candidate who takes the tax money without full compliance is another knock on their pet experiment. And so the fact that we're all the way to Friday indicates to me that if there's news about Branam this week, it won't be good news.

Comments (11)

Gonna make it pretty tough for Branam to pay those delinquent payroll taxes he didn't withhold from Busse's big checks.

If he has to quit the race, one can assume he won't continue to pay for banner ads, so I imagine we'll soon see a new face in the No. 2 spot in the ad hierarchy over on the right hand side.

To the comment above, if Busse was not an employee, he will have to file a 1099 and pay those taxes himself, right? If he is/was an employee, I agree Branam is responsible.

After refreshing the page, I see that Branam is actually No. 3 on the banner ad list.

If he's out, I also wonder if he will still be hosting the Portland history bike tour on April 26.

If Mr. Branam is DQ'd as a result of spending violations, will he be required to repay the City of Portland all public funds forwarded to him/his campaign? That seems like a hefty price to pay.

Curious, it depends what the auditor says. He could be fined, slapped on the wrist or nothing. However if he is DQed from VOE funding he would probably have to pay it back. One thing to keep in mind though is that even if he get's disqualified from using VOE funds he can still remain on the ballot.

Can any donor -- I mean any private donor -- to any campaign for public office (or initiative) extract a contractual promise from the candidate (or campaign) about how they will spend it?

Let's not confuse just who is the master versus the servant here. Is a gift a gift if there are strings attached?

Whenever I review campaign expenditures and receipts as published by the SoS I can't ever seem to find such contractual strings. Indeed, one candidate or campaign routinely retransfers cash from one recognized entity to another, provide that the new recipient is self-declared a non-profit. Would strings follow such retransfers, in an ever more complex spiral of complexity for policing the strings?

(I too am a non-profit, but that is another matter for another day, because I can give life to a non-profit and then collect a salary.)

The city here is just a private donor, but that characterization gets lost in the minds of folks that think that they and they alone have some unique lock on all that is good, in a world filled with so many evil others.

Suppose Mr. Branam were to retransfer any remaining balance to other candidates that will not raise/spend more than X, but that have not signed any contract with the city. Could the Auditor seek to get it back or to disqualify them for office were they to actually get the number of votes needed to win or participate in a run-off? Such a targeted retransfer would not be incompatible with the the city's stated public interest in the program itself, and would isolate out the issue of the meaning of the contract -- by looking at it from the view of what it means to not have such contract.

The Auditor wants to be Master, motivated only by his self-declared goodness and accountability of course . . . which is wholly incompatible with nearly any definition of gift or donation that I can find.

If I gave 100 grand to candidate Y and I brought a private law suit against them demanding return how would the court view such suit? I guess my one and only claim would be that my gift was not a gift but was instead a loan. So . . . at what point does a loan convert into a gift? When a candidate "wins" office? When a candidate fails to "win" office (and thus lacks the power to regift something else of value)? Or when a candidate says or does something objectionable to the gifter/donor, but that otherwise fits within the following:

"ORS 31.150 [. . .] (2) A special motion to strike may be made under this section against any claim in a civil action that arises out of: [. . .] (d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. [. . .]"

The following issue is of greater importance (to me anyway) than the individual candidacy of Mr. Branam:

Shall a city, when in the capacity of donor to any political campaign, have greater power or right of control over such campaign than that of any private donor to any other campaign?

The alleged code violation here is not that the candidate spent more than X, but is qualitative. And any demand for return looks inescapably incompatible with any notion of a gift or donation, rather than that of a loan. When, again, does the loan convert to a gift?

Pdxnag --

This is probably a gross oversimplification, but I would think a private citizen/corporate donor's conditional loan to a candidate would (at least in many instances) violate public policy and thus void a claim for recoupment on the basis that the candidate did not adhere to the "strings."

In the context of the VOE, I wouldn't frame the City as a "private donor." I'm not sure that any of the three -- gift, donation, loan -- appropriately define the provision of VOE funds to the candidates. If a violation occurs, certainly the City (on behalf of the taxpayers who are picking up the bill) have the right to seek recourse.

I'm all over the place, but I view the City and a private donor as fundamentally different and subject to different sets of rules whether they be civil, contractual, regulatory, etc.

I left out the public policy argument; glad you you saw it. The state court addressed an instance where two private parties gambled on an election outcome and one of them demanded return of his wager. The court noted the public policy argument against such a gamble but allowed the legal demand for return of the wager, provided the demand was made before the election that was the subject of the wager. If one of the parties were also either a candidate or donor/lender the public policy would surely not have less force.

If the Auditor were to demand return of any money from Mr. Branam then Mr. Branam could surely rebut that if he has to give it up then so too must all the participating candidates. This argument would not be incompatible with that of a claimant asserting taxpayer standing -- and demanding return of all the money from all the candidates. (He would have nothing to lose, personally.) The city's statutory obligation is to remain neutral among candidates . . . which is another reason why I suggested the retransfer tactic, to poison the claim of neutrality. That, and to argue that the demand for return is not sufficiently narrowly tailored to survive free speech scrutiny where none of the persons from whom any money is demanded to be returned exceeded the spending limits -- i.e., the proffered public interest to justify the scheme (not to enable nit picking that no private donor would dare dream of doing, overtly). A claim by the city that they are simultaneously a super-donor and not-a-donor-at-all has all the hallmarks of any fancy public-private partnership -- complete nonsense.

Suppose only that a participating candidate simply withdraws. Must they return any monies already spent? (Think Sten, and think again about the loan versus gift dichotomy.) Are they contractually obliged to continue to campaign, and sit in office if elected? Surely Mr. Branam could argue that the Auditor's statutory duty to remain neutral among all candidates, participating or not, is imported like any UCC gap filling provision into the "contract." (Invoking one big can of worms.) There is a statute too that allows someone to refuse, within a limited time after being elected, to assume an office without being charged with failure to show up for meetings and like duties. That is, could Mr. Branam simply quit and repudiate the contract to campaign under the banner of participating candidate and insist that all monies received were a gift? He holds a whole lot of cards he could play, where he could invoke both as-applied and on-its-face challenges to the entire scheme of post-delivery review of any "donation" to any participating candidate. I think Mr. Branam holds the stronger hand.

What does any other "participating" candidate think about whether to demand return of money from Mr. Branam? Pipe up! (Or did Bronze do it for you?)

This does have a Three Musketeers flavor to it.

PDXNAG,

Unlike Mr. Branam, can we assume you passed the bar exam?

The Auditor's Office indicated that the decision by the Auditor was released at 5 pm to the major news outlets - the Trib, the Oregonian, etc.

Bojack, I know you're done for the week, but you should be able to get your hands on that decision.

Hook it up.

Reggie.

Mr. Tee,

That hits on the story of my life. There were three papers that I took incompletes on when in law school. I seem to rewrite them over and over again . . . in a near-futile quest to try to formulate a clean error-free theory for the particular issues raised in each paper. I am still not satisfied, and the issues are more timely today than before. There once was a time, as when I was 21 and pushing real estate, that I was mystified by fancy words and arguments. It is far less mysterious today . . . precisely because I made a personal effort to demystify it.

I can at least claim to have gone to law school. I would gladly take the bar . . . if for no other reason than to rebut your cheap argument. I would accept 20 grand to make an effort to defeat the nonsense voter owed election scheme. I need only raise my own standing as elector to invoke the applicable state statute. If I were a member of the bar I could instead shop for another elector and make precisely the same argument, but then obtain the 20 grand in fees from the government when I win. But this would have the same sort of ethical taint as that now displayed by Mr. Branam to game both the electoral and tax system. Mr. Branam's knowledge is surely superior to that of the guy who reports that he "was a full-time PhD student in the Systems Science Program at Portland State University for two years[,]" -- as if that is a positive rather than a negative? Gary Blackmer.

I could even ask for double the fee, from the government, in this particular case, in the discretion of the judge. This is a lesson learned from a case that one of my past professors brought on behalf of a particular class. Such a request could be viewed as double the taint, depending upon one's view of that particular game . . . which is a remarkable parallel to the voter owed election scheme. One thing is nearly certain, were I to bring a case and NOT make a demand for legal fees then the government would not likely be foolish enough to try to make a demand that I pay their fees if they win. (The class of classic public interest lawyers, like the participating candidates, would have more to lose than me.) A blog comment is all that I can afford, but that is fine . . . and is not ethically flawed.

I could claim membership in the "Loyal Order of Water Buffaloes" if that would help you decide on the merits of my argument. Bronze at least tried to address the points rather than the class or status of the speaker.


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