If you’ve been reading this blog for more than a week or so, you might recall that we filed an ethics complaint against Gov. Asa Hutchinson on October 24. Long story short, the Hutchinson campaign reported twice as much in contributions from a Ms. Scarlett Basore in Rogers, AR, taking $5,400 from her for both the primary and general elections.[footnote]Honestly…that’s not that long of a story, nor is it particularly shortened. So that prefatory phrase was probably unnecessary. Whatever.[/footnote]
On Saturday, we received a letter from the Arkansas Ethics Commission, in which the Commission said that the complaint had stated a possible violation of campaign-finance rules and, therefore, the Commission was opening an investigation. You can see the entire letter here.
Give the facial impropriety of the donations, it is no surprise that the Commission would open an investigation. Indeed, the post of this post is less to note the investigation and more to address the idea that, if the contributions were improper, state law will allow Hutchinson simply to return the contributions and amend his CC&E[footnote]Campaign Contribution & Expenditure[/footnote] Reports.
They might do that. But it would be a complete misreading and improper application of the law.
The “do-over” rule[footnote]I’ve long wanted to call this “the Milligan mulligan,” but I haven’t had success in getting that name to catch on.[/footnote] was the brainchild of former Sen. Jon Woods (R-Federal Bureau of Prisons) as part of the ethics “reform” that the legislature so kindly gifted to us in the 2015 session. Codified at Ark. Code Ann. 7-6-229, it says, in pertinent part:
It is an affirmative defense to prosecution or disciplinary action if a person required to file a report under this subchapter amends the report within thirty (30) days of discovering or learning of an unintentional error in the report.
That last bit — “unintentional error in the report” — is important in the current situation. At least vis-a-vis the allegations about Basore contributions, Gov. Hutchinson’s CC&E Reports do not contain an error. Indeed, the contributions were reported 100% correctly from all outward appearances. The CC&E entries contain the date the contribution was received, the name and address of the contributor, and other required information.
By its own terms, however, the rule under 7-6-223 only provides an affirmative defense when someone amends a report to correct an unintentional error in the report. It says nothing about accepting an illegal contribution then simply returning the contribution within 30 days if and when someone notices it.
The difference in these situations should be obvious, but perhaps it isn’t. Let’s reduce it to a few hypotheticals.
Hypothetical 1: Candidate A receives a contribution for $500 from Donor A, but, when filling out his CC&E and balancing the first page, Candidate A types “$50” into the calculator rather than “$500,” so his balances are wrong. Section 7-6-223 should apply because this is a (1) unintentional (2) error (3) in the report.
Hypothetical 2: Candidate B receives a $100 cash contribution from Donor B, but he keeps the money for himself and does not report it on his CC&E. Donor B notices the lack of an entry for his contribution and brings it to the Ethics Commission’s attention. Section 7-6-223 should not apply because, while this is an error in the report, it was not unintentional.
Hypothetical 3: Candidate C receives three maximum contributions for the general election from the same person, but each is given under slightly different names (we’ll use “C. Donor,” “Clarence Donor,” and “Clarence P. Donor”). These are entered into the CC&E separately and the totals on the first page of the CC&E accurately reflect the total amount received. If and when a plucky blogger notices the contributions, section 7-6-223 should not apply because, even if this was an unintentional error, the error was in accepting the contributions, not in the reporting and filing of the CC&E. That is, the unintentional error was not “in the report.”
Such an interpretation makes sense from a practical standpoint, too. The CC&E, as filed, is the only record of the contributions to a candidate that 99.9% of people ever look at.[footnote]We only discovered the duplicate contributions to Gov. Hutchinson by downloading the raw contribution data from the Secretary of State website, and, even then, only found it by chance when looking for something else.[/footnote] Considering that a CC&E requires that the person submitting it swear under oath that everything in the report is true and correct, and considering that the political practices pledge that every candidate signs says that they will comply with campaign-finance statutes, the onus has to be on the candidate (or his campaign staff) to ensure that the contributions received are legal.
Any other interpretation–or any application of the “do-over” under section 7-6-223 to apply to anything more than errors on the face of the reports–renders nearly all protections and limits worthless. If section 7-6-223 applies to accepting illegal contributions and gives thirty days to return the contribution and amend the reports, a person could give multiple times the maximum amount to a candidate, using a slightly different name each time, and it would only ever matter at all if someone found the duplicate contributions and filed a complaint. The election–and the benefit from receiving that money–could be long gone, and the candidate would only have to pay back the donor from carryover or debt-elimination funds to avoid any kind of sanction at all.
Do I put it past Jon Woods to have hoped for such a broad reading of the statute. Of course not. But the statute says what it says, and those words limit the applicability to unintentional errors in the report.
Nevertheless, it is entirely possible that the Ethics Commission will allow Gov. Hutchinson to avail himself of section 7-6-223. If they do, we should all be concerned that the Commission is reading an already absurd rule so much more broadly than it was intended to be read, to the point of more or less eviscerating individual contribution limits.
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Ed. note: Of course, there is technically an error on Hutchinson’s CC&E, since the cumulative contribution from Ms. Basore should have said $5,400 after the second contributions, rather than $2,700. If Hutchinson were to amend his CC&E to reflect the correct cumulative total, section 7-6-223 would apply to that amendment. However, it would still not apply to the steps involved in returning the contribution and filing a new CC&E to reflect the return.