As previously reported, Carole Migden was recently hit with the largest fine in the history of California's Fair Political Practices Commission (“FPPC”). She was found guilty of 89 separate violations of California law and fined $350,000.
The record FPPC fine, however, is only the tip of the iceberg for Senator Migden. She still has several unresolved violations of California law, which the FPPC chairman calls “serious and deceitful.” Rather than letting the FPPC proceeding run its course, Senator Migden chose instead to join forces with radical right wing Republicans by filing a lawsuit in Federal Court to declare California's campaign finance laws unconstitutional. Senator Migden is happy to undo years of valuable campaign finance reform just for a shot at saving herself from her clear violations of the law.
This is the long and sordid tale of Senator Migden's numerous violations of California law. It is a tale not only about her recent lawsuit (Migden v. The Fair Political Practices Commission), but also a tale about Carole Migden's serious and deceitful assault on the notion of fair political practices in general (Carole Migden versus fair political practices). It will take a while to unravel the mess that Carole Migden has created. So grab a beverage, get a comfy chair, and hold on for the ride . . .
Carole Migden – Leading in 'Serious and Deceitful Violations of California Law'
Ross Johnson, the Chairman of the FPPC said: that “Sen. Migden's track record has shown her complete disdain for the Political Reform Act.” So, what is Carole Migden's track record? How has she broken the law? Let me count the ways. (Spoiler alert: the count is currently at 132 violations. And we're still counting.)
In 2002, the FPPC fined Migden $16,000 for eight violations of Government Code 84203. She failed to properly report eight contributions totaling over $125,000.
Four years later, in 2006, the FPPC fined Migden $47,500 for 21 violations of five sections of California law.
That same year, in 2006, the FPPC fined Migden another $47,500 for an additional 22 violations of four sections of California law.
Most recently, last week, the FPPC fined Migden $350,000 for 89 violations of California law.
Following the most recent fine, Mr. Johnson, the FPPC Chair said “We will now focus our attention on that lawsuit and Sen. Migden's numerous other serious and deceitful violations of California law.” Yes, you heard him right, there are still more violations that were not included in the most recent charge of 89 separate violations. More on that later.
Carole Migden – Leading 'With A Tube of Lipstick in One Hand and a Bayonet In the Other'
How did we get here? Carole Migden's involvement in statewide politics dates back to 1996 when she was elected to the California Assembly and the money started rolling in from corporate donors and lobbyists. When she was elected to Willie Brown's seat in the California Assembly, Carole Migden declared that the Legislature would be getting “a lesbian with a tube of lipstick in one hand and a bayonet in the other.” Unless Migden has three hands, we can assume that she put the lipstick in her pocket so she would always have a free hand to accept huge campaign contributions. She did not, we know, ever put down the bayonet.
Undoubtedly using her bayonet, Carole Migden managed to amass a fortune in campaign contributions. Her list of contributors from 2000 alone is a Who's Who of corporate special interests. In just that one cycle, she collected $10,000 from Philip Morris, $2,000 from Enron, $5,000 from PG&E, and the list goes on. By the end of 2000, her campaign account ballooned to almost $1 million.
In a Declaration she filed in Federal Court, Carole Migden explains why pre-contribution limit funds are so much more valuable than post-contribution limit funds: “It can be harder to raise funds under a contribution limit or to amass left over funds from a prior election efforts.” In other words, Migden wants to be able to use the money she collected from Philip Morris and friends when there was no contribution limit to compete against candidates that had to raise their funds with contribution limits in place. And somehow, in Carole Migden's mind, this is fair.
But Migden's current legal troubles relate not to how she raised her money, but what she did with the money. The FPPC investigation and her lawsuit relates to $977,000 that she illegally transferred from her Assembly Committee for use in her Senate Re-Election campaign.
Migden claims in her Declaration that “in early 2001, I directed my campaign treasurer, Roger Sanders, to set aside $900,000 of the Assembly Committee's funds and move them to a separate interest-bearing account that we could use for a future election.” But then, inexplicably, she admits that “For purposes of public disclosure, we initially continued to report those funds on my Assembly Committee campaign reports, although I did not intend to use them in any way for that committee.” Let me see if I have this right. It seems to me that Migden is saying that she thought she had moved the funds from her Assembly Committee to some other account in early 2001, but that she filed false reports with the FPPC that pretended that the funds were still in her Assembly Committee account. Indeed, the report that she filed with the FPPC for the period ending 12/31/2002 stated that the $900,000 still remained in her Assembly Committee account, even though Carole Migden has testifed under oath that she thought she had moved those funds in 2001 and that she had no intention to use the funds for that committee. I guess Migden has a fluid definition of honesty.
It wasn't until June 25, 2003, two and a half years after Migden claims she transferred the $900,000 from her Assembly Committee that she actually transferred the funds ($977,340.28) from her “Committee to Re-Elect Assemblywoman Carole Migden” account to her “Friends of Carole Migden” account. But because she had left the Assembly in 2002, as we will see in the next section, these funds were “Surplus Campaign Funds,” and it would be illegal for Migden to use the funds for a future campaign.
The Law
The law at issue here, California Government Code section 89519, is a pretty simple law. It says that “Upon leaving any elected office . . . campaign funds raised after January 1, 1989, under the control of the former candidate or elected officer shall be considered surplus campaign funds . . . .” The law further provides that “surplus campaign funds” can be used for six – and only six – purposes: (1) paying outstanding campaign debts, (2) giving the money back to contributors, (3) donating it to a charity, (4) contributing it to a political party committee, (5) contributing it to a candidate for federal office, and (6) paying ongoing expenses of the committee such as litigation expenses.
As campaign finance laws go, section 89519 is one of the most straight-forward and simple to follow. Every elected official – including Senator Migden – knows: if you're going to run for another office, you need to transfer your campaign funds to a new account before you leave your current office. If you do not, the funds are designated “surplus campaign funds” and you cannot use them for a future campaign. Period.
Applying this law to Carole Migden's situation is also pretty simple. In 2002, when she was about to leave the Assembly, she had two choices. She could either transfer her Assembly Committee funds into a new campaign account for use in the future, or she could leave the funds in her Assembly Account and use them for one of the six uses allowed by law. She chose the second choice. She left the funds in her Assembly Committee account, and on the day she left the Assembly, these funds became “Surplus Campaign Funds.” From that date forward, she was no longer allowed to use the funds for her future campaigns.
Although it may seem arbitrary and technical at first glance, Section 89519 is actually both necessary and valuable. Here's why – it helps stop corruption. Imagine a world in which elected officials are allowed to use their left-over campaign funds any way they want after they leave office. They could, say, pocket the funds. In other words, every dollar that Don Fisher gave to Carole Migden could end up furnishing a home in Berkeley. Now, if Carole Migden is allowed to pocket her campaign contributions, that would seriously call into question the decisions she made (such as personally and enthusiastically sponsoring Don Fisher to be appointed to the State Board of Education.) So I think we can all agree that that a world in which candidates can use left-over campaign contributions in any way they want is not a good thing. So now imagine a world where elected officials could keep large balances in their campaign accounts long after they leave office. Being out of the media spotlight and without an opponent to watch over the former politician, there are few safeguards to prevent the individual from pocketing the money. Now we're right back in that first world. To prevent this result, California – as well as 30 other states – have laws that significantly restrict the use of funds when a candidate leaves office. Because of their incredible value in preventing corruption, none of these laws ever has been found unconstitutional.
Carole Migden – Leading the Republican's Effort to Declare Prop 34 Unconstitutional
Carole Migden has joined a group of radical Republicans whose goal is to have overturned every campaign finance law in this country. In her lawsuit against the FPPC, Senator Migden asks the Federal Court to declare that California Government Code section 89519 is unconstitutional. Some of the only support for her specious argument comes from her apparent new BFF – Republican Dan Lungren. When he was Attorney General in 1995, Lungren wrote an opinion claiming that section 89519 is unconstitutional. Lungren, not surprisingly, doesn't think much of campaign finance laws. (He also doesn't think much of a woman's right to choose and he cosponsored a bill to deport children born in the United States to non-citizen mothers. Great company you're keeping, Carole.)
Section 89519 is part of a broad campaign finance reform package known as Proposition 34. Before it was submitted to the voters, during the 2000 Regular Session of the Legislature, Proposition 34 was known as Senate Bill 1223. SB 1223 was authored by Senator John L. Burton, Migden's predecessor to her seat in Senate District Three. In the Assembly, Carole Migden voted in favor of SB 1223 which included what would become Government Code section 89519. In fact, the Assembly Analysis of the bill, which Migden presumably read before voting on the bill, clearly describes section 89519 and its impact on “surplus funds.” The bill was signed by Governor Gray Davis and later approved by the voters.
Nevermind that Carole Migden supported this law when she was in the Assembly, back before she allied herself with Dan Lungren. Since she took an oath to uphold the Constitution, one must assume that this law was not unconstitutional when she voted for it. And as far as I know, neither section 89519 nor the First Amendment have been modified in the eight years since Migden voted for the law. So it seems that Senator Migden has a very fluid and self-serving definition of what is “constitutional.” A law that doesn't work out well for her personally, it seems, is unconstitutional in the mind of Migden. How convenient.
Although it is an invaluable law necessary to protect against corruption, Carole Migden wants to have section 89519 declared unconstitutional. Her reason is simple: she violated the law and she does not want to suffer the consequences.
Carole Migden – Leading in Finger-Pointing
In Carole Migden's mind, there's lots of blame to go around for her violations of the law. She blames John Burton for writing and the Legislature (of which she was a Member) for passing an unconstitutional law (for which she voted.) She blames Governor Gray Davis and the citizens of California for passing an unconstitutional law. She blames her campaign volunteers for filing erroneous reports. Everyone, it seems, is responsible except Carole Migden.
Migden also has blamed her violations on her inability to understand the law and on her leukemia. As the Santa Rosa Press Democrat reports:
Migden's attorney, James Harrison, attributed the errors to a failure to understand the law. He also said that Migden's battle with leukemia — which she cited as a cause of her wild ride on Highway 80 last year — distracted her from properly reporting campaign activity.
Does Migden not realize that one of the basic job requirements to serve as a State Senator is the ability to understand laws? Senators, after all, write the laws. One would hope they have the ability to understand them. Senator Migden's claim of ignorance of the law is no defense. If anything, it is a stark admission that she is not qualified to be a lawmaker. What's more – Carole Migden voted for this law that she now claims not to understand. Is Carole Migden really saying that she does not comprehend the effect of the laws for which she votes?
Likewise, Migden's leukemia excuse also does not help her case. We all, of course, sympathize with Senator Migden's health problems. However, if her disease impairs her cognitive ability so much that it causes her to violate California's campaign finance laws 89 times and blackout while driving, then she probably does not have the ability to effectively represent the Third District of California in the State Senate.
Migden's incompetent volunteer defense also lacks merit. Senator Migden had $1 million in funds. A responsible leader, and particularly one who honestly felt she was impaired due to ill health, would use a small portion of those funds to hire a competent bookkeeper who could ensure that she did not violate the law. That's just the simple and responsible thing to do. Blaming the help is no excuse for Senator Migden's illegal activity.
Carole Migden – Leading?
I believe that Carole Migden filed this lawsuit for no reason other than to delay the inevitable. She must realize that she will never be allowed to use the $647,000 in “Surplus Campaign Funds” for her re-election campaign. She also must realize that she will be levied a hefty fine for already spending the $330,000 in “Surplus Campaign Funds” for an illegal purpose. Her lawsuit, then, seems to be simply a delay tactic. If she can keep the FPPC tied up in court for a few months, she won't have to face the consequences of her actions until after the June primary.
In a comic twist of irony, the Court will hear Migden's Motion for Preliminary Injunction on April Fools Day. In this Motion, Migden is asking the Court to prohibit the FPPC from enforcing section 89519 to prohibit Carole Migden from using the funds designated as “Surplus Campaign Funds.” Both Carole Migden and the FPPC agreed to have this case heard by a Magistrate Judge rather than a District Court Judge. Migden's Motion is set to be heard by Magistrate Edmund F. Brennan. Magistrate Brennan served in the U.S. Attorney's Office from 1988 to 2006 when he was chosen to serve as a Magistrate Judge. Most recently, Brennan served as the Chief of the Civil Division.
Before continuing to burn this path, Carole Migden really should step back and take a very serious look at what is the right thing to do in this situation. Is it right for her to ally herself with and enlist as a fighter for the right wing corporatists who are intent on dismantling California's campaign finance reforms? Is it right for her to refuse to accept responsibility for violating California law and instead blame others for her violations? Is it right for her to ask that she be allowed to compete using more favorable rules than everyone else in the campaign? The answer to all of these questions, of course, is “no.”
In the only poll which has been released in this race (February 2008), Carole Migden is in last place among the three current contenders. Only Joe Alioto Veronese performed more poorly than the incumbent Senator. And he dropped out of the race a week later. In short, this is devastating news for Migden. There are now rumors that she is about to drop out of the race.
Regardless of whether or not she drops out of the Senate race, I call on Senator Migden to drop her lawsuit and allow the FPPC proceeding to run its course. She should defend herself vigorously in the proceeding, but pay any fines that are assessed against her. She should then use any left over “Surplus Campaign Funds” for a good cause, as allowed by the law. That is what a true Leader would do.
