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Is Senator Del Marsh a Campaign Finance Scofflaw?

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by Thomas J. Scovill

 

When Senator Del Marsh, (R-Anniston), became pro tempore of the Alabama Senate in 2010 following the great Republican sweep, he pushed a series of new ethics laws with great fanfare. This included updates to Alabama’s Fair Campaign Practices Act (FCPA).

 

Because there is every reason to believe that Senator Marsh is up to speed on the provisions of the FCPA, it is disturbing to find errors in his annual report for 2011, errors that do not complying with the law in several respects. All of this information was send to Senator Marsh last year but he never respond to the letter. After reviewing his annual report for 2012 if was evident that the problems had not been corrected; indeed, they recurred. Additionally there  were new problems as well.

 

Per section 17-5-7 of the FCPA, campaign funds may only be used for the following purposes (complete section included at bottom of this message):

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  • campaigning
  • expenses of the office held
  • inaugural or transitional expenses
  • contributions to state and local government
  • contributions to organizations for which contributions are tax deductible
  • political party qualifying fees
  • campaign contributions for tickets to party functions and dues ($5,000 per term of office) 

 Here are the issues (references are included at the bottom of this message).

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1.     Impermissible use of campaign funds – loan to a not-for-profit corporation. There is nothing in the FCPA which permits a campaign to make loans to individuals, corporations, or other organizations, i.e., loans are not on the Section 17-5-5 list of permitted uses of campaign funds.

 

In May 2012, Senator Marsh made a $40,000 loan from his campaign to Citizens for Fair Representation, Inc. (http://www.nonprofitfacts.com/AL/Citizens-For-Fair-Representation-Inc.html).

 

2.     Impermissible use of campaign funds – contributions to ineligible organizations. The FCPA states that contributions can only be made to state and local government and to organizations for which contributions are eligible for a federal tax deduction. Contributions to legal defense funds are not eligible for a federal tax deduction. And a legal defense fund is not a charitable cause because it is a private trust intended to benefit only the person in need of funds to pay his legal expenses.

 

Senator Marsh has made contributions from his campaign to the legal defense funds of Alabama Senator Quentin Ross ($5,000 each in 2011 and 2012, $10,000 total)  and Congressman Spencer Bachus ($2,500 in 2012).

 

3.     Impermissible use of campaign funds – contributions to a political party in excess of allowable limit of $5,000 per term of office. These contributions are limited to dues and tickets for political functions.

 

Senator Marsh has made contributions totaling $7,072 from his campaign to Republican organizations. This is $2,072 in excess of the $5,000 limit.

 

7-1-11               Coffee County Republican Committee                $1,000

9-14-11             Alabama federation of Republican Women         $1,000 

9-16-11             Calhoun County Republican Party                      $4,572 

7-28-12             Calhoun County Republican Party                      $   500

                        Total                                                                 $7,072

                        Amount above $5,000 limit                                 $2,072

 

 

 

Again Senator Marsh was notified about these problem over a year ago and yet the same pattern continues. Perhaps William Shenstone had something like Alabama’s FCPA in mind when he wrote, “Laws are generally found to be nets of such a texture, as the little creep through, the great break through, and the middle-sized alone are entangled in.”  It seems Del Marsh is large enough to have no concerns of entanglement.

 

References for issue 1:

 

FCPA  Section 17-5-7.  Use of excess moneys received; solicitation, etc., of contributions.

(a) A candidate, public official, or principal campaign committee as defined in this chapter, may only use campaign contributions, and any proceeds from investing the contributions that are in excess of any amount necessary to defray expenditures of the candidate, public official, or principal campaign committee, for the following purposes:

(1) Necessary and ordinary expenditures of the campaign.

(2) Expenditures that are reasonably related to performing the duties of the office held. For purposes of this section, expenditures that are reasonably related to performing the duties of the office held do not include personal and legislative living expenses, as defined in this chapter.

(3) Donations to the State General Fund, the Education Trust Fund, or equivalent county or municipal funds. Donations to an organization to which a federal income tax deduction is permitted under subparagraph (A) of paragraph (1) of subsection (b) of Section 170 of the Internal Revenue Code of 1986, as amended, or any other charitable, educational, or eleemosynary cause of Section 501 of Title 26 of the U. S. Code.

(4) Inaugural or transitional expenses

 

References for issue 2:

 

See FCPA  Section 17-5-7.(a)(3) at reference for issue 1.

 

Ross defense fund:  http://www.rossdefensetrust.org/index.php?option=com_content&view=article&id=71&Itemid=74

 

Extracts from US Code: http://www.law.cornell.edu/uscode/text/26/401

 

26 USC § 501 – EXEMPTION FROM TAX ON CORPORATIONS, CERTAIN TRUSTS, ETC.

 

(a) Exemption from taxation

An organization described in subsection (c) or (d) or section 401(a) shall be exempt from taxation under this subtitle unless such exemption is denied under section 502 or 503.

(b) Tax on unrelated business income and certain other activities

An organization exempt from taxation under subsection (a) shall be subject to tax to the extent provided in parts II, III, and VI of this subchapter, but (notwithstanding parts II, III, and VI of this subchapter) shall be considered an organization exempt from income taxes for the purpose of any law which refers to organizations exempt from income taxes.

(c) List of exempt organizations

The following organizations are referred to in subsection (a):

(d) Religious and apostolic organizations

 

26 USC § 401 – QUALIFIED PENSION, PROFIT-SHARING, AND STOCK BONUS PLANS

 

References for issue 3:

 

Section 17-5-7.(d) Notwithstanding any other provision of law, a principal campaign committee, during a term of office commencing on the day after the election for the seat or office the candidate seeks and ending on the day of the next general election for that seat or office, may pay qualifying fees to a political party and may expend up to a cumulative total of five thousand dollars ($5,000) of campaign contributions, and any proceeds from investing the contributions, for the following purposes:

(1) Tickets for political party dinners or functions.

(2) State or local political party dues or similar expenses incurred by independent or write-in candidates.

 

 

Complete extract of Section 17-5-7 of the FCPA: 

 

Section 17-5-7.  Use of excess moneys received; solicitation, etc., of contributions.

(a) A candidate, public official, or principal campaign committee as defined in this chapter, may only use campaign contributions, and any proceeds from investing the contributions that are in excess of any amount necessary to defray expenditures of the candidate, public official, or principal campaign committee, for the following purposes:

(1) Necessary and ordinary expenditures of the campaign.

(2) Expenditures that are reasonably related to performing the duties of the office held. For purposes of this section, expenditures that are reasonably related to performing the duties of the office held do not include personal and legislative living expenses, as defined in this chapter.

(3) Donations to the State General Fund, the Education Trust Fund, or equivalent county or municipal funds. Donations to an organization to which a federal income tax deduction is permitted under subparagraph (A) of paragraph (1) of subsection (b) of Section 170 of the Internal Revenue Code of 1986, as amended, or any other charitable, educational, or eleemosynary cause of Section 501 of Title 26 of the U. S. Code.

(4) Inaugural or transitional expenses.

(b) Notwithstanding any other provision of law, including, but not limited to, Section 13A-10-61, a candidate, public official, or principal campaign committee may only accept, solicit, or receive contributions:

(1) To influence the outcome of an election.

(2) For a period of 12 months before an election in which the person intends to be a candidate. Provided, however, candidates for state office and their principal campaign committees may not accept, solicit, or receive contributions during the period when the Legislature is convened in session. For purposes of this section, the Legislature is convened in session at any time from the opening day of the special or regular session and continued through the day of adjournment sine die for that session. However, this subdivision shall not apply within 120 days of any primary, runoff, or general election, and shall not apply to the candidates or their principal campaign committees participating in any special election as called by the Governor. This subdivision shall not apply to a loan from a candidate to his or her own principal campaign committee.

(3) For a period of 120 days after the election in which the person was a candidate, but only to the extent of any campaign debt of the candidate or principal campaign committee of the candidate as indicated on the campaign financial disclosure form or to the extent of reaching the threshold that is required for qualification as a candidate for the office which he or she currently holds, or both.

(4) For the purpose of paying all expenses associated with an election challenge including, but not limited to, quo warranto challenges.

(c) Notwithstanding any other provision of law, including, but not limited to, Section 13A-10-61, a candidate, public official, or principal campaign committee shall not accept, solicit, or receive contributions for any of the following reasons:

(1) As a bribe, as defined by Sections 13A-10-60 to 13A-10-63, inclusive.

(2) For the intention of corruptly influencing the official actions of the public official or candidate for public office.

(d) Notwithstanding any other provision of law, a principal campaign committee, during a term of office commencing on the day after the election for the seat or office the candidate seeks and ending on the day of the next general election for that seat or office, may pay qualifying fees to a political party and may expend up to a cumulative total of five thousand dollars ($5,000) of campaign contributions, and any proceeds from investing the contributions, for the following purposes:

(1) Tickets for political party dinners or functions.

(2) State or local political party dues or similar expenses incurred by independent or write-in candidates

 

 

Other References

 

Campaign finance reports search site:  http://arc-sos.state.al.us/CGI/ELCNAME.MBR/INPUT

 

Senator Marsh, extract from annual report for 2011 (page 1)

 

 

Senator Marsh, extract from annual report for 2012 (page 1) (page 2)

 

 

 

The Alabama Political Reporter is a daily political news site devoted to Alabama politics. We provide accurate, reliable coverage of policy, elections and government.

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Health

COVID-19 hospitalizations, new cases continue to rise

Eddie Burkhalter

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COVID-19 Corona Influenza Virus Molecules Image Stock Photo

The number of rising hospitalized COVID-19 patients in Alabama is a concerning sign of a possible coming surge of the disease, state health experts said Friday. Alabama hospitals were caring for 888 coronavirus patients Friday, the highest number since Sept 9. 

UAB Hospital was caring for around 80 COVID-19 inpatients Friday afternoon, said Dr. Rachael Lee, an infectious disease specialist at UAB, speaking to reporters Friday. UAB Hospital hasn’t had that many coronavirus inpatients since Aug. 18, when the disease was surging statewide.

“We have been dealing with this since March, and I think it’s easy for us to drop our guard,” Lee said. 

Alabama added 3,852 new coronavirus cases on Friday, but 1,287 of them were older positive antigen tests, conducted in June through October and submitted to ADPH by a facility in Mobile, according to the department. Still, Alabama’s daily case count has been increasing, concerning health officials already worried that as the weather turns colder and the flu season ramps up, Alabama could see a surge like the state had in July.

Alabama’s 14-day average of new daily cases was 1,247 on Friday, the highest it’s been since Sept 4. Over the last 14 days, Alabama has added 17,451 new COVID-19 cases.

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Friday’s inclusion of those older positive test results throws off the day’s percent positivity, by Thursday the state’s percent of tests that were positive was nearly 16 percent. Public health officials say it should be at or below five percent or cases are going undetected.

The state added 16 COVID-19 deaths on Friday, bringing to total confirmed deaths statewide to 2,859. Over the last two weeks, 206 deaths were reported in the state. Alabama’s 14-day average of new daily deaths on Friday was 15.

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Alabama state health officer Dr. Scott Harris told APR by phone Friday called the rising new cases and hospitalizations “worrisome.”

Harris noted the data dump of older confirmed cases in Friday’s data, but said “but nevertheless, I think it’s clear our numbers are going up.”

Harris said it’s not yet clear what’s causing the continued spread, but said it may be due at least in part to larger private gatherings. ADPH staff has mentioned a few outbreaks association with such gatherings, but Harris said it’s hard to know for certain if that’s the major driver in the state’s rising numbers.

“It’s football season and the holidays are coming up and school is back in session,” Harris said. “I think people are just not being as safe as they were.”

Harris noted that on ADPH’s color-coded, risk indicator dashboard, red counties, which denotes counties with rising cases and percent positivity, the 17 red counties on Friday were distributed across the state.

“So there’s not one event, or even a handful of events. It seems like there’s just a lot of things happening in a lot of places,” Harris said.

Alabama’s rising numbers are mirrored in many states. The U.S. reported more than 71,600 new COVID-19 cases on Thursday, nearing the country’s record highs, set in July.

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News

Birmingham approves $1.3 million contract for real-time crime center technology

Woodfin repeated that facial recognition capabilities will not be used in accordance with the contract.

John H. Glenn

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The Birmingham City Council approved a five-year, $1.3 million contract with Motorola this week to provide new technology for the police department’s real-time crime center amid unease and public concern over the potential use of facial recognition software within the new systems.

Mayor Randall Woodfin insisted in his remarks made before the council that the new technology is meant to integrate existing hardware and technology inside the real-time crime center. “You’re not buying any additional new equipment,” he said, “You’re buying something to integrate all those systems.”

The software suite includes Motorola Solutions’s CommandCentral Aware, a system that aggregates video, image and other data information into one interface, and BriefCam, a “video synopsis” system that will further integrate and analyze information from Birmingham’s ShotSpotter systems, public cameras and police body cameras.

Briefcam offers facial recognition capabilities, which was the main concern of community members speaking before the council, and the risk that use of the technology could disproportionately affect Black people. Facial recognition technology has a record of racial bias and misidentifies Black people at rates five to 10 times higher than white people.

“Despite assurances that there will not be facial recognition implemented at this phase that does not prevent it from being implemented in the future,” said Joseph Baker, Founder of I Believe in Birmingham and one of the Birmingham residents voicing concern on the proposal. “I believe that this software, if fully implemented, can easily lead to violations of unreasonable searches.”

Another resident who spoke against the resolution was Byron Lagrone, director of engineering at medical software solutions company Abel Healthcare Enterprises. Lagrone pointed to IBM and Amazon as examples of companies that have halted or abandoned facial recognition and object tracking software altogether over racial bias concerns.

“The prevailing attitude, among technical people is this technology is not effective, and it causes high amounts of harm for next to no gain,” Lagrone said.

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Woodfin repeated that facial recognition capabilities will not be used in accordance with the contract.

“It’s explicit in this contract that facial recognition will not be used,” Woodfin said, “[If] facial recognition wants to be used in the future of this city. It would have to be approved by this body. … The mayor’s office or the police department doesn’t have unilateral power to use facial recognition. That is not part of what our contractual relationship is with Motorola.”

Woodfin also clarified that the total $1.3 million price of the contract will not be paid as a lump sum but spread out over the five-year commitment.

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The city council voted 8 to 1 to approve the contract, with District 8 Councilman Steven Hoyt speaking in favor of the use of facial recognition capabilities.

“You can’t say, ‘I’m going to build a house but I’m not going to use the restroom,’” Hoyt said. “If it’s in the house, you’re going to use the restroom. … If it has the capability of facial recognition, guess what’s going to happen? You’re going to use it. I’m going to vote for it because I know we’ve got to have every tool we can garner to fight crime, because it’s out of hand.”

Hoyt also suggested a review of the information collected by the new system apparatus.

“I do think, for the public’s sake, we need to have some way we review that and see how it’s being used,” Hoyt said. “We need that to go along with this.”

District 3 Councilwoman Valerie A. Abbott — who said she was the victim of a burglary the day before the vote — echoed the mayor’s insistence that the facial recognition capabilities would not be deployed unless authorized by the city council, reading a letter from Motorola stating “in order to enable facial recognition, Motorola will require an addendum or change order to the contract,” which would have to come before a public meeting of the city council.

“I too would not want facial recognition,” Abbot said, “I’m voting in favor of this because the majority of my constituents are telling me they want more and better policing, capture of criminals, prevention of crime.”

District 5 Councilman Darrell O’Quinn was the lone no vote among the near-unanimous city council, stating that he had “some reservations about how we’re doing this and will vote my conscience.” 
Later, O’Quinn was quoted in BirminghamWatch, saying his vote reflected his concerns about “taking on a new debt obligation in the midst of a projected $63 million shortfall in revenue.”

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Elections

Opinion | Doug Jones’s pathway to victory: Substance over lies

Jones said his work in the Senate should prove to the people of the state that party matters less than productivity. 

Josh Moon

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Alabama Sen. Doug Jones speaks during the Democratic National Convention.

Alabama Sen. Doug Jones believes voters will ultimately see through Tommy Tuberville’s lazy campaign and lies, and that enough of them will be moved by his work over the last two years to send him back to D.C. 

Jones’ comments came during a lengthy interview on the Alabama Politics This Week podcast. He also discussed his plans to address some of Alabama’s most pressing issues and also praised Sen. Richard Shelby, an Alabama Republican.  

But it was Jones’ comments about Alabama voters — and whether too many of them are incapable of moving away from the Republican Party — that were most interesting. Jones still believes there are open-minded voters in the state, and that there isn’t enough attention being paid to polls showing a growing dissatisfaction in Alabama with President Donald Trump. 

“There are a number of things that Donald Trump has done that people (in Alabama) don’t agree with,” Jones said. “There are a number of things that he’s done that’s hurt Alabama and that they’re not OK with. That’s where I come in.”

Jones said his work in the Senate, where he’s sponsored the most bipartisan legislation over the last two years, should prove to the people of the state that party matters less than productivity. 

“I tell everyone, you owe it to yourself to look at every candidate and every issue,” Jones said. “I do that. I’ve been a Democrat all my life but I don’t think that I have ever pulled a straight lever. Because I look at every issue. I will tell you that there have been times that I didn’t vote for people who are Democrats for whatever reason — I just couldn’t do it. I think we owe it to ourselves to do that.”

Jones had the perfect example to drive the point home. 

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“Y’all all know our state auditor, Jim Zeigler? Jim wasn’t always a Republican. Jim’s first runs for office were as a Democrat. 

“I rest my case.”

You can listen to the full interview at the Alabama Politics This Week website, or you can subscribe to the podcast on Apple Podcasts, Google Play, Spotify or wherever you get your podcasts. 

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Economy

New unemployment claims decreased last week

Fewer people joined the unemployment rolls last week compared to the week before.

Micah Danney

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(STOCK PHOTO)

There were 7,964 new unemployment claims filed in Alabama last week, down from 8,581 filed the previous week, according to the Alabama Department of Labor. 

Of the claims filed between Oct. 11 and Oct. 17, there were 4,032 related to the COVID-19 pandemic. That’s 51 percent, compared to 36 percent the previous week.

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