AUGUSTA — The state’s ethics commission opted to delay action regarding withheld Clean Elections funding in the hope that a judicial ruling might be coming soon, but it did not rule out the possibility of calling a special meeting should the money continue to be held back.
During the roughly three-hour Commission on Governmental Ethics and Election Practices meeting, the four commission members agreed that it was unfair that certain candidates have not received funding ahead of the November general election but said they were not in a position to release funding at this point.
Two candidates, both Republicans, came forward to ask for funding. Mark André, who is running for the Waterville-based House District 110 seat, has been left without funding because a recount delayed the determination of his primary win. Jayne Crosby Giles, running in the Belfast-based Senate District 11, had not received supplemental funding because of filing deadlines. André and Giles are two of the approximately 130 candidates around the state who are missing funding.
Republican Gov. Paul LePage has refused to release $1.4 million in public funding for Clean Elections candidates, and Republican House members have refused to fix a typographical error in the law that provides additional Clean Election funds to be used this year.
Most of the candidates who have not received funding due to them are Democrats or unenrolled.
The suit brought by Maine Citizens for Clean Elections against the governor was filed on behalf of those candidates and the Maine residents who made $5 donations to the candidates that qualified their campaigns for Clean Election funding.
The Clean Election Act, established in 1996, is a voluntary program that fully finances qualified individuals running for governor or the Legislature. To qualify, candidates must collect a minimum number of donations of $5 or more made payable to the Maine Clean Election Fund. Once the candidate qualifies, he or she cannot accept private contributions.
In court Tuesday, Peter Strawbridge, an attorney for LePage, argued that the governor hadn’t committed any civil violations in withholding his signature from financial orders that would instruct the Commission on Governmental Ethics and Election Practices to disburse the $1.4 million that were left unused or returned by Clean Election candidates after the 2016 elections. LePage has signed off on similar financial orders in the past.
Superior Court Justice William Stokes, a Democrat and former mayor of Augusta, said Tuesday he hopes to issue a ruling next week, but he expects that his decision will be appealed to the Maine Supreme Judicial Court.
Additionally, candidates haven’t received supplemental funds because the Legislature unintentionally reduced the commission’s spending authority by $3 million.
Jonathan Wayne, the executive director of the Commission on Governmental Ethics and Election Practices, said there is nearly $5 million in the Clean Elections Fund, and that there was believed to be enough to pay all the candidates, including Terry Hayes, an independent candidate for governor. However, he said the commission has not been authorized by the Legislature to release the funds and was able to pay only early portions. Wayne told the commissioners he remains hopeful the Legislature will address the issue soon.
Meanwhile, André, of Waterville, says without the $5,075 owed him as a Clean Elections candidate, he has been left at a disadvantage in competing with his Democratic opponent, Colleen Madigan, a Clean Elections candidate who has received her funding. André said he has contracted services that need to be paid. André’s recount occurred near the end of June and the state wasn’t able to make a Clean Elections payment to his campaign before the new fiscal year began on July 1.
André said this year’s ranked choice voting implementation pushed his recount later, which was a voluntary recount called by his primary opponent. The primary was June 12, but his recount wasn’t certified until July had already begun, and André said he wasn’t even notified until late June there was going to be a recount.
Wayne said he and his staff went to great lengths to try and get André paid, including writing two checks — one for him and his primary opponent — to be sent to both candidates, with one ultimately having to return theirs. Wayne said this idea was dismissed, and it was too late to find a solution.
“I have the utmost sympathy for Mr. André,” Wayne said. “I’ve done everything I can since he’s come forward.”
He said he’s floated ideas he was uncomfortable with, such as using the general fund to get the candidates their money.
“In terms of administrative solutions, I really have exhausted those,” he said.
André contended he was the “presumptive nominee,” so he should have been issued a check to begin with. He asked if the commission was prohibited by law from making a payment to the presumptive nominee, saying while his race was decided by just a few votes, he was more likely than not to win.
Phyllis Gardiner, an attorney for the ethics commission, said under the Clean Elections Act, “presumptive nominee isn’t a term of any significance.” While acknowledging this was a highly unusual case, and saying she understood André’s point, she called his presumptive nominee idea a “germane construction.”
Another Republican candidate, Kathy Javner, running for the House District 141 seat, which includes parts of Washington and Penobscot counties, did not receive her $5,075. Wayne said his office made a mistake in not issuing her a check, as they assumed the close race eventually would lead to a recount.
“There was an administrative error in getting her the payment,” he told the commissioners.
Commission Chairman William Lee, of Waterville, said the commissioners were not going to make a decision at the Wednesday meeting, but he did say they might call a special meeting, depending upon how the court case goes. To call a special meeting, all the commission has to do is post a notification 24 hours in advance.
André, who said he does not want to give up his status as a Clean Elections candidate, wants the authority to loan himself the $5,075. However, Wayne has said this would constitute a violation, as it would technically be considered a private donation. Clean Elections candidates are prohibited from taking private funds. Lee said the commission did not have the legal authority to authorize André to loan himself the funds.
André agreed last week to sit tight until Wednesday’s meeting. After the meeting he said he was going to weigh his options over the next several days regarding loaning himself the money.
“They’re obligated to act,” he said about the commissioners.
If a candidate does receive the Clean Elections status but does not collect Clean Elections funding, the person is able to switch back to being a traditionally funded candidate who can accept private donations. However, traditional candidates who have raised money cannot switch to become a Clean Elections candidate.
In a testy exchange during the meeting, commission member Richard Nass said André’s claims of not being able to campaign without funding were false. Not having funds does not preclude Andre from going door to door and talking to Waterville residents, he said. While sayinghe was sympathetic to André’s plight, Nass said this was a campaign for the House of Representatives, not a run for governor.
“It’s about talking to people,” Nass said.
“I’m doing that,” André said.
“Keep doing that,” Nass said.
After the meeting, André said that while going door to door is important during a campaign, so is paying for literature and a website. He said it’s much easier to talk to residents about his campaign if they know his issues ahead of time, such as wanting Colby and Thomas colleges to contribute money to lower Waterville’s tax rate.
Lee also said earlier in the meeting that while going door to door is an important aspect of campaigning, so is being able to send out a mailer.
Joshua Tardy, who attended the meeting on behalf of the Senate Republican caucus, said he thought the commissioners could make the money available. He said they could allow the Clean Elections candidates to finance their campaigns traditionally. However, he said the overall decision should be tabled for a few weeks in hopes the Legislature will solve the problem.
Robert Howe, an attorney representing Maine Citizens for Clean Elections, told commissioners the law doesn’t permit these candidates to raise funds traditionally and also called on lawmakers to solve the problem.
André said the longer the commissioners wait on the Legislature or the courts to make a decision, the more they are destroying the integrity of the Clean Elections program.
“There will never be a candidate that trusts the Clean Elections program again if they let this happen,” he said.
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