By Bill Britt
Alabama Political Reporter
MONTGOMERY—The advent of republican leadership has brought many changes to state government but the area of campaign finance reform is still sorely lacking.
“What we face is the cleaver mind of people trying to get around the law by exploiting loopholes, so we have to keep finding ways to plug the holes,” says Senator Arthur Orr (R-Madison).
Orr, who championed the laws concerning electronic campaign filings and the establishment of a searchable database for campaign contributions, still thinks there is more to be done, “It may be a never-ending process but that is the way it is, so we keep working.”
During the 2012 legislative session a commission was established to study campaign finance reform. The idea can be traced back to a letter that Montgomery District Attorney Ellen Brooks sent to Alabama’s top cop, Attorney General Luther Strange.
In the letter, Brooks outlines the many flaws in Alabama’s campaign laws that left a grand jury with more question than answers.
The grand jury, empaneled by Montgomery County Circuit Court Judge Johnny Hardwick, examined 12 complaints of PAC-to-PAC transfers or failure to filed reports in a timely manner.
The grand jury received the results of an eight-month investigation by Brooks’ staff. The investigation resulted from complaints from Democrats that some Republican-operated political action committees violated the new state ban on PAC-to-PAC transfers. It also involved complaints from Republicans that some Democratic groups violated state law by failing to file campaign finance reports in a timely fashion or if at all.
The complaints were as follows:
We have reviewed complaints relating to alleged violations of the Alabama Fair Campaign Practices Act found in Sections 17-5-1 through 17-5-35 of the Code of Alabama. They include the following:
- Transfer of $50,000 from Alabama 2014 PAC to Republican State Leadership Committee–AL PAC on March 15, 2011 (PAC to PAC transfer)
- Transfer of $100,000 from Monica Cooper to 136 Years PAC on December 20, 2010 (contribution in another’s name and PAC to PAC transfer)
- Transfer of $100,000 from Republican State Leadership Committee–AL PAC to Senate Republican Caucus PAC (formerly New Alabama Leadership Committee PAC) on February 28, 2011 (PAC to PAC transfer)
- Transfer of $5000 from Network PAC to 136 Years PAC on December 20, 2010 (PAC to PAC transfer)
- Transfer of $1000 from Gulf PAC to New Alabama Leadership Committee PAC on December 21, 2010 (PAC to PAC transfer)
- Transfer of $1000 from SUN PAC to New Alabama Leadership Committee PAC on December 21, 2010 (PAC to PAC transfer)
- Transfer of $3000 from South AL PAC for Higher Education to New Alabama Leadership Committee PAC on December 23, 2010 (PAC to PAC transfer)
- Transfer of $2000 from Bachus Reelection to Friends to Elect Dickie Drake on October 28, 2011 (excess contribution from principal campaign committee of federal candidate)
- FCPA forms not timely filed by AL Democratic Conference PAC for 2009 through 2011 (report filing)
- FCPA forms not timely filed by AL New South Coalition PAC for 2009 through 2011 (report filing)
- Transfer of $30,000 from DST PAC to Network PAC on February 28, 2011 (PAC to PAC transfer)
- Transfer of $30,000 from DST PAC to New Alabama Leadership Committee PAC on February 22, 2011 (PAC to PAC transfer)
The high profile targets, then Governor Bob Riley and Speaker of the House Mike Hubbard, led to a momentary sensationalizing of the hearings, but no indictments were returned by the grand jury.
What should remain troubling is the vagaries of the law and in many places the complete absence of law, which leaves a wide open door for those who would subvert the law.
The following is what DA Brooks found that left the grand jury powerless and confused, “No individual is identified to be held responsible and prosecutable for any criminal violation pertaining to a political action committee (PAC) under the act.”
While each PAC listed with the Secretary of State has a named chairman and secretary the law does not allow for either of those individuals to be, “held responsible and [or] prosecutable.” Even if a crime has been committed there is no one to find guilty.
It was also found that, “It is not a crime for a PAC to solicit or receive an illegal contribution, such as from another PAC.”
Therefore, the law enacted by the Republicans to ban PAC-to-PAC transfers left it so that a PAC can “solicit or receive an illegal contribution,” from anyone, even another PAC. In what appears to be a dizzying array of legislative hocus-pocus, the grand jury felt there was no way to determine what actually constituted a crime.
In her letter to Strange, DA Brooks further states, “Because venue lies in the county in which the alleged violator resides, the State of Alabama has no ability to prosecute an out-of-state PAC. See section 17-17-35(d) of the Code of Alabama. Moreover, it is unclear who the violator is–the PAC, the Chair, the Treasurer or the person who physically does the act,” adding, “While Attorney General Opinion 94-228 addresses how to deal with unwanted or unsolicited contributions, the Act does not address the issue; and neither provides any time limit for the return of contributions.”
Lastly Brooks writes, “There is no office or agency authorized to monitor and review the records required to be filed under the Act to ensure that they are timely filed and are complete and accurate. Some office or agency should have investigative and subpoena powers over elections laws and have the power to levy administrative fines where appropriate and the power to refer prosecution to the Attorney General of the State of Alabama or the District Attorney in the appropriate judicial circuit.”
Brook’s letter can be summarized as, no agency of oversight, no agency to investigate, no one to prosecute and no penalty for a PAC accepting illegal contribution.
Senator Orr, says that he is ready for the commission to begin its work so that there will be time for “the commission to prepare bills to address these issues in the 2013 session.” Orr thinks that there is a lot to be done but the laws must be “revamped and that there be transparent.”
The commission has yet to hold it first meeting and according to official records only the Senate and House have filed the appointments of their committee members.