Law and Opinion in the de Blasio Investigation

March 17, 2017
posted by Bob Bauer

The de Blasio campaign finance investigation ended with explanations from federal and state authorities of their decision not to pursue charges. The Manhattan District Attorney Cyrus Vance, Jr. chose to give the lengthier account: ten pages of conclusions of law and facts in a letter to the State Board of Elections, which had referred the matter for investigation. Yet again in recent legal history, the prosecutor declines to prosecute but does not stop there, adding his disapproval of the conduct he would not indict.   He also suggests how the law could be improved so that it more directly, clearly prohibited the actions he does not approve of. The letter is something less than a model for productive prosecutorial encounters with the political process.

The District Attorney is passing on a case that involves a coordinated campaign of candidates, party leaders and party organizations to deliver support to targeted State Senate races. The question was whether party county committees became conduits for contributions to candidates that were larger in amount than what the candidates could accept directly. Donors were solicited for contributions to the parties, and the parties promptly provided the money to the campaigns for immediate use in paying their consultants. The coordinated campaign drew up plans for this arrangement with the county committees and submitted them to legal counsel for review. Counsel then approved of what the prosecutors refer to as an “end run” around the candidate contribution limits. The lawyer put his advice in writing and stayed in close contact with the client, providing “consistent advice” from planning to execution. The DA found no evidence of “bad faith” in the way the advice was sought or delivered.

This advice saved the day for the Mayor, his political team and the parties. The prosecutors could not find the requisite mens rea if lawyer had cleared the transactions and the client had relied in good faith on the advice. Mr. Vance’s office concedes that the law is not airtight and the counsel’s advice was not obviously incorrect. The rules prohibit the circumvention of the candidate contribution limits through “earmarking,” but for a violation to occur, the donor must direct the intermediary–in this case, a county committee– to pass the contribution on to the candidate. Here, there was no communication at all between the party committees and the donors.

Mr. Vance finds that this conduct, while not chargeable, “appears contrary to the intent and spirit of the law.” The arrangement for funding the campaigns through the parties is an “end run” and a ‘work around,“ and the District Attorney suggests that remedial regulatory or legislative action is advisable. The prosecutor decides, in effect, that those subject to the investigation got away with something, and that his office should call them on it. This fits with an unhealthy trend in prosecutions that end with a declination embedded in an editorial.

Mr. Vance defines the issue on which he would advise the State Board and legislature as a complicated one, especially in a period of weakened parties: “how central a role a party can play” in a “closely orchestrated” or “closely managed” fundraising campaign to help its candidates.   The Vance letter contains language from the second, 2001 Colorado Republican cases in which the Supreme Court holds forth about the importance of seeing the complexity of “how the power of money actually works in the political process.” 553 U.S. 431, 434. In the portion Mr. Vance selected for citation, the Court notes that parties act on behalf of candidates, but also on behalf of “those who seek to produce obligated officeholders, ”and the District Attorney believes that the line separating healthy from corrupt party activity under current New York state law is not adequately and clearly drawn. But prosecutors bring to this hard question only so much familiarity with the political process, and only so much patience for the mechanics of campaign sausage making.

It certainly counts in the District Attorney’s favor that he elected not to pursue charges when there was a fair question about the law and the facts on investigation revealed reliance on advice of counsel. This would have been enough. But the DA seems compelled to clarify that he does not–in his words–“endorse” these coordinated campaign’s activities. In what way is a conclusion that certain actions do not merit prosecution an “endorsement” of the conduct?

There are others in a better position than the DA to offer, if they so choose, what the Times headline characterized as “harsh criticism” of the conduct in light of the law’s “intent and spirit.” And those others, including the State Board, the legislature and the wider community of experts and party officials, can also debate the need for new restrictions on the political parties’ involvement in “closely managed fundraising campaigns” for the benefit of their candidates.

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