[EL] Technology to facilitate compliance
Vince Leibowitz
vince.leibowitz at gmail.com
Sun Aug 14 17:06:02 PDT 2011
The burden of compliance for small campaigns can be significant. For
example, we had a client last cycle who was running for Congress. It was a
small campaign by Congressional race standards: less than $100k raised and
spent.
However, there turned out to be numerous compliance difficulties--many
software simply couldn't fix that required calls to the FEC. In one
instance, an early consultant who was hired by the campaign early on--before
we were hired--had the campaign sign a very expensive contract and failed to
deliver. After they failed to deliver after a month or two, the campaign
stopped paying the consultant, but booked the bills due under the contract
as debt. We ultimately took the necessary steps to terminate the
contract--and the consultant never replied. Ultimately, we sent a certified
letter to the consultant indicating that if he failed to respond, we were
considering the contract null and void and that we were not paying them
anything else, and considering the debt we had booked as incurred in bad
faith, etc.
Trying to "unbook" the debt that the campaign had previously booked after we
finally terminated the contract and that debt was no longer a debt took
several people at the FEC to explain to the treasurer how this should be
fixed (and we ultimately had two competing answers). Federal candidates who
loan their campaigns money are also compliance issues that software can't
fix or help with that occur on small campaigns.
Making sure we complied with the law took *hours and hours* of my time and
the campaign treasurer's time when it came to the "quirky" issues.
*To most of my clients, it isn't the form filing part that is difficult--for
federal, state, or local. It is complying with other laws and regulations
that are vague or running into situations that the law simply doesn't
address.*
With Texas state-level campaigns, one problem we have is that we
consistently have organizations that want in some way to "help" a campaign
that legally can't help the campaign. Every time this arises, we as
consultants end up explaining to the campaign why they can't work with a
particular group and then the campaign has to take that back to the
organization.
Our worst compliance nightmares (and thank God we had a professional
compliance firm guiding us on this one) was with Farouk Shami in 2010 in the
Democratic Primary for governor Texas. We had multiple issues that were very
difficult that related to things like "leasing" his CHI factories in Houston
for filming TV ads since they had to be leased because a corporation
couldn't in-kind the services, etc.
There are some things software just can't solve. And, in most cases, the
black-letter law can't solve these compliance issues, either. You end up
dealing with opinions (particularly at the state level) that are published,
or dealing with officials at an ethics agency that simply tell you their
interpretation when it is ground no one has crossed before.
Too, campaigns don't just have to worry about state and federal election law
for compliance. There are also wage and hour regulations, contract labor
regulations, etc. etc. Even with the smallest of campaigns, compliance is a
constant and ongoing issue.
On Sun, Aug 14, 2011 at 6:41 PM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
> So – and again a naïve question – what, practically is the
> burden of compliance (especially as to disclosure) for small campaigns? I’m
> not doubting that there is such a burden; I just want a better sense of what
> it is, and whether it can be mitigated.****
>
> ** **
>
> Eugene****
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Smith, Brad
> *Sent:* Sunday, August 14, 2011 4:15 PM
>
> *To:* law-election at department-lists.uci.edu
> *Subject:* Re: [EL] Technology to facilitate compliance****
>
> ** **
>
> The automation rule is the norm at the FEC, which provides free software,
> and in many if not most states. Many small campaigns, however, still have
> difficulties with using the software. ****
>
> ****
>
> The technical filling of data, however, is not the real problem, though it
> does add to the costs and fears that people have. And believe me, people do
> have fears. ****
>
> ****
>
> *Bradley A. Smith*****
>
> *Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law*****
>
> *Capital University Law School*****
>
> *303 E. Broad St.*****
>
> *Columbus, OH 43215*****
>
> *(614) 236-6317*****
>
> http://www.law.capital.edu/Faculty/Bios/bsmith.asp****
>
> ** **
> ------------------------------
>
> *From:* law-election-bounces at department-lists.uci.edu on behalf of Volokh,
> Eugene
> *Sent:* Sun 8/14/2011 5:52 PM
> *To:* law-election at department-lists.uci.edu
> *Subject:* Re: [EL] Technology to facilitate compliance****
>
> ** **
>
> I agree entirely that the government should provide the software
> -- which will often be as simple as a Web page (with supporting software)
> hosted on the jurisdiction's election commission Web site, or perhaps a
> spreadsheet template that people could fill in and that the Web page could
> accept for batch uploads, plus perhaps some software to provide automatic
> schedule reminder e-mails to everyone who signs up. But this is not rocket
> science; this would be a simple application of well-understood, routinely
> used technology.
>
> Indeed, I would think there should be a general principle, whether
> enacted in statute or just as a strongly accepted guideline -- let's call it
> the Automation Rule: Every disclosure and reporting regulation imposed by
> election law must be accompanied with government-provided software, and that
> proper use of such software would fully discharge the user's legal
> obligations under the jurisdiction's election law. Naturally, the software
> also has to be made easy to use, and it's hard to come up with a purely
> legal rule to make sure that it is easy enough to use. But it seems to me
> that if the Automation Rule isn't an existing norm already, it should be.
>
> Eugene
>
> > -----Original Message-----
> > From: law-election-bounces at department-lists.uci.edu [
> mailto:law-election- <law-election->
> > bounces at department-lists.uci.edu] On Behalf Of Larry Levine
> > Sent: Sunday, August 14, 2011 12:23 PM
> > To: 'Kathay Feng'; Volokh, Eugene; law-election-bounces at department-
> > lists.uci.edu; law-election at department-lists.uci.edu
> > Subject: Re: [EL] Check out Study shows who breaks campaign laws-
> > ThePuebloChieftai...
> >
> > Transaction costs are just a very small part of the matter. It is the
> rules
> > about what needs to be reported and upon what schedule that creates the
> > traps. These rules often differ from jurisdiction to jurisdiction and
> change
> > from election cycle to election cycle within the same jurisdiction. If
> the
> > government is going to require automated (electronic) filing of
> > contributions and expenditures, then the government should either provide
> > the software and hardware needed to comply free of charge, or allow those
> > costs to fall beyond the limits of spending on a campaign.
> > The difficulty with so much of what we enact in the way of reporting
> reforms
> > is that they may apply well to big statewide races or even to legislative
> > races. But when you come down to a city council campaign in a town of
> just a
> > few thousand people, or in a very small school district those
> requirements
> > become burdensome.
> > Larry
> >
> > -----Original Message-----
> > From: law-election-bounces at department-lists.uci.edu
> > [mailto:law-election-bounces at department-lists.uci.edu<law-election-bounces at department-lists.uci.edu>]
> On Behalf Of Kathay
> > Feng
> > Sent: Sunday, August 14, 2011 11:58 AM
> > To: Volokh, Eugene; law-election-bounces at department-lists.uci.edu;
> > law-election at department-lists.uci.edu
> > Subject: Re: [EL] Check out Study shows who breaks campaign laws-
> > ThePuebloChieftai...
> >
> > Automation is certainly a practical solution that would help. In
> California,
> > we had a bi- and non-partisan group of reformers, the regulated
> community,
> > citizen groups and others that all agreed that greater automation would
> help
> > with disclosure, and significantly lower transaction costs for both
> > campaigns and the government. The idea is still stuck in the mud,
> though.
> > Sent via BlackBerry by AT&T
> >
> > -----Original Message-----
> > From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> > Sender: law-election-bounces at department-lists.uci.edu
> > Date: Sun, 14 Aug 2011 10:41:53
> > To:
> > law-election at department-lists.uci.edu<
> law-election at department-lists.uci.edu>
> > Subject: Re: [EL] Check out Study shows who breaks campaign laws
> > - ThePuebloChieftai...
> >
> > A naïve question: Could some of these problems -- at least to
> > filing -- be relieved with automation (and might they already be so
> > relieved), especially with automation that the jurisdiction is willing to
> > certify as sufficient? For instance, I certainly sympathize with
> concerns
> > about the burden of reporting contributions and expenditures, but what if
> > State X, when it enacts some such disclosure restrictions, provides that
> the
> > obligation is discharged if a campaign worker goes to a particular Web
> site
> > and accurately enters all the data he's asked to enter? Likewise, I take
> it
> > that whatever software is used to gather credit card donations via the
> Web
> > presumably already creates a data file that can just be sent to the
> election
> > authorities to discharge the disclosure obligations. Or am I missing
> > something big here?
> >
> > Eugene
> >
> > > On Sun, Aug 14, 2011 at 1:05 PM, Larry Levine <
> larrylevine at earthlink.net>
> > wrote:
> > > > You've touched a nerve. We have "reformed" our way into a time when
> > > > one cannot run an election campaign of any size, or a PAC, or
> > > > conduct activities of a state or local political party or club
> > > > without the cost of a professional treasurer and an attorney on
> > > > retainer. At the same time we are placing limits on the amounts of
> > > > contributions and the permissible expenditures in campaign without
> > > > allowing for these "overhead" items to come from a separate account.
> > > > Gone is the day when a volunteer can be the treasurer of a campaign
> > > > for a friend if the campaign is of any consequential size. On top of
> > > > that, we have created a thicket of regulations and requirements that
> > > > differ from state to state and from jurisdiction to jurisdiction
> > > > within a state, thus making it virtually impossible for a campaign
> > > > and/or a candidate to avoid violations without the services of an
> > > > elections attorney who is watching over every facet of the campaign.
> > > > And all in aide of stamping out the perception of corruption. Tell
> > > > me, is the perception any less now than when we started the "reforms"
> > some 40 years ago?
> > > >
> > > > Larry
> > _______________________________________________
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--
_______________________________
Vince Leibowitz
Principal Consultant
The Dawn Group
vince.leibowitz at gmail.com
vince at dgtexas.com
DGTexas.com
512.705.7001 (m)
512.861.2370 (f)
512.318.2432 (o)
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