Earlier this week the State Elections Enforcement Commission (SEEC) settled a long-running, high-profile case involving the Connecticut Democratic Party (CDP). Although the terms of the settlement are commendable in many respects–including imposing the largest election law violation fine (excuse me, “voluntary payment”) in state history–the SEEC exercised poor judgment in deciding to settle the case. Rightly or wrongly, justly or unjustly, the settlement creates the appearance that a major political party in Connecticut can “buy” its way out of an embarrassing investigation by the chief regulator of our state campaign finance laws. [Disclosure: I am a Democrat and have contributed to the CDP in the past.]
It pains me to say this. I have spent the better part of the past twenty years as a good government advocate, which includes supporting the independence of our state’s three main “watchdog” agencies: the SEEC, the Freedom of Information Commission and the Office of State Ethics. I have worked with open government groups for the past five years to persuade the General Assembly that it made a mistake when it put these three agencies under the umbrella of the Office of Governmental Accountability, which threatened their independence. I have served as independent legal counsel for both the SEEC and the Office of State Ethics, conducting significant investigations on their behalf when outside counsel was required. I know and respect the staffs of all of these agencies.
In short, I believe in the watchdog agencies and the critically important role they play in our state, and I am loath to criticize them. But I think the SEEC seriously undermined its reputation as an independent watchdog agency by settling its dispute with the CDP. The settlement compromised the SEEC’s effectiveness as a regulator.
I acknowledge that some good government organizations, such as Common Cause, have applauded the settlement. As I said, there are many things to commend it. It resolves many, if not most, of the legal issues in the case and requires the CDP to comply with the SEEC’s interpretation of the campaign finance laws from this day forward. And it imposes a record $325,000 fine (excuse me again, “voluntary payment”).
So why do I oppose the settlement? First, the appearance of the settlement is terrible. It looks like the SEEC was bought off. Of course it wasn’t. There is nothing nefarious about the settlement. But that is what it looks like, and appearances are often just as important as reality. (That is why the appearance of a conflict of interest, not just an actual conflict of interest, is grounds for recusal of a decisionmaker in many cases.)
Second, the settlement establishes a bad precedent for future SEEC investigations. It sends the message that if the candidate or party that is the subject or target of an investigation has significant financial resources and access to great lawyers, the candidate or party can stymie the investigation for months, if not years, and then just make a big “voluntary payment” when it looks like the regulator or the court is going to rule against the candidate or party (and perhaps force them to reveal politically embarrassing emails).
Third, although the settlement resolves most of the key legal issues in the case, it only resolves them as between the SEEC and the CDP. If another candidate or party engages in conduct similar to what the CDP allegedly did, that other candidate or party can raise the same legal objections that the CDP did. The law remains unsettled.
Fourth, I followed this case closely and read the briefs of all of the parties. The Office of the Attorney General filed compelling briefs in this case in support of the SEEC’s legal positions. I cannot predict with certainty how Connecticut Superior Court Judge Antonio Robaina would have decided this case–no one can. But I can say that the SEEC’s legal position was much much stronger than the CDP’s position. I think the SEEC was likely to prevail in court.
Finally, there are certain cases that are fundamentally about principles, not money. Sometimes it is necessary to have a court resolve controverted legal issues, particularly when one of the issues is whether a state regulator even has the authority to conduct certain types of investigations. This was such a case.
Citizen confidence in our government is already low. The SEEC settlement further erodes that confidence.
Addendum (6/29/16): SEEC staff reached out to me after I published this post and shared some additional information with me about why the SEEC settled. Although the information does not change my ultimate opinion about the settlement, the information does cast the settlement in a different light.
As I stated above, I thought the arguments in support of the SEEC’s legal position were very strong. However, the SEEC was very concerned about what would happen to the Citizens’ Election Program if the CDP prevailed on its argument that federal law preempted key parts of that state program. The SEEC feared that losing the preemption argument would create a huge loophole in the program. And the SEEC apparently viewed the risk that it would lose that argument as significant. Thus, to eliminate that risk and the havoc that an adverse judicial decision on the preemption issue would have on the Citizens’ Election program, the SEEC opted for a settlement that required the CDP to pay a very large fine (uh, “voluntary payment”), comply with the SEEC’s interpretation of the law in the future and barred the CDP from raising the preemption argument in any future enforcement action.