Experts: Brunner Deal Iffy: FEC Approval to use State Campaign Assets for Senate Bid was Needed Beforehand, Some Say

 
Experts: Brunner deal iffy: FEC approval to use state campaign assets for Senate bid was needed beforehand, some say

Saturday, June 13th, 2009



WASHINGTON — Verify first, transfer valuable equipment second. Several campaign-finance and ethics experts say Secretary of State Jennifer Brunner should have asked the Federal Election Commission to determine the legality of a secret agreement before it took effect instead of nearly four months afterward.

Brunner contends that the unusual deal allows her campaigns to pull off a maneuver that normally would be improper: using assets bought by her state campaign fund in her U.S. Senate campaign.

“It seems like she should have asked for the advisory opinion first,” said Melanie Sloan, executive director of the nonpartisan Citizens for Responsibility and Ethics in Washington and a former federal prosecutor.

Although Brunner’s agreement might prove legal, “Certainly it is on the shady side, and you don’t expect the secretary of state, of all candidates, to engage in activities like that. She should have checked first.”

That also is the conclusion drawn by a lawyer who is a Democrat but who asked for anonymity because he is commenting on a fellow Democrat. The lawyer is not involved with either Brunner’s campaign or the campaign of Lt. Gov. Lee Fisher, Brunner’s Democratic opponent in the Senate primary.

“As Ohio’s chief campaign finance officer, Secretary Brunner should have sought an advisory opinion from the FEC before entering into this agreement,” said the lawyer, who is familiar with campaign-finance law.

At issue is about $15,000 in office equipment, supplies and cell phones bought by Brunner’s secretary of state campaign in the week before it was shut down on Feb. 17, the day she announced her Senate candidacy. FEC regulations prohibit a candidate from directly using money or other assets from a state campaign fund to help finance a federal race.

After several Dispatch inquiries, Brunner’s campaign asked the FEC on Thursday for a legal opinion about an agreement that her husband’s law firm and her Senate campaign purportedly signed about four months ago. Brunner’s Senate campaign declined to release a copy of the agreement but said it would be sent to the FEC.

Although no one from the Brunner campaign would talk on the record yesterday, a spokesperson designated by the campaign indicated that there was confidence about the agreement’s legality when it was first reached and that the campaign remains confident that it was well within the bounds of campaign law.

The agreement calls for Brunner’s Senate campaign to donate the value of the equipment, estimated at $15,000, to charity beginning Oct. 29. Brunner’s campaign says that would enable the Senate campaign to legally use the equipment purchased by the state campaign.

Brunner is asking the FEC to answer a question the agency has not previously ruled on, said James Kahl, a lawyer in Washington with Womble Carlyle Sandridge & Rice and the commission’s deputy counsel from 2002 to 2007.

“The problem is, the horse is out of the barn,” Kahl said. “The problem is what to do about this now, after the fact. The FEC has not yet approved this kind of work-around.”

In the past, the FEC has allowed excess state campaign funds to be given to charities, but the commission has not linked it in the way Brunner now is trying to do, Kahl said.

“She’s asking to keep the transferred asset,” Kahl said, adding that it’s hard to see how this solution voids the transfer.

In the universe of campaign-finance maneuverings, what Brunner did is not uncommon, said Richard Hasen, an election-law expert and professor at Loyola Law School in Los Angeles.

“These kinds of issues occur a lot,” Hasen said, citing a recent case where Hillary Clinton’s debt-ridden presidential campaign sold its electronic mailing list to Clinton’s Senate campaign “for a nice fee,” although those are two federal campaigns.

“Lots of things can be done if you have a good lawyer,” Hasen said. “On the scale of things that happen, (Brunner’s situation) doesn’t seem to me to be such a big deal.”

But Ohio GOP chairman Kevin DeWine said it is a big deal, and he put out a news release yesterday calling on Brunner to approve an independent investigation.

“At best, Jennifer Brunner is gaming the system, and at worst, she’s flagrantly violating the campaign-finance laws she was elected to enforce,” DeWine said. “Secretary Brunner should immediately release all documentation related to this transaction and ask an independent investigator to review her compliance with both state and federal laws.”

Jonathan Riskind, THE COLUMBUS DISPATCH, Saturday, June 13, 2009 3:03 AM