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Dear DelBene: When you're in a hole, stop digging.
Yesterday, I posted a diary about a major problem facing Democrats in Washington's First District: one of the leading candidates, Suzan DelBene, failed to file a necessary disclosure form within the proper time frame. In a nutshell, she needed to file a personal disclosure form for the House Ethics Committee no later than 30 days after spending over $5,000 on her campaign in 2011. Despite spending over $5,000 in the first quarter of 2011, she still has not done so.

This is no laughing matter, because failure to do this constitutes a felony that can be referred by the Republican-controlled House for investigation by the Department of Justice. In a close House race in a swing district, allowing the Republican to say that his Democratic opponent is under investigation for a felony would essentially guarantee a Republican victory.

Well, the DelBene campaign responded to my post...badly. An employee of the campaign, Viet Shelton, emailed me as follows, essentially claiming that the expenses accrued during the first quarter of 2011 doesn't count because it was a previous campaign cycle, and that Delbene "wasn't a candidate for anything" in 2011. In the interests of honesty, here's the first email:

Dante-

Saw your post about the 1st CD in Washington. I hate to tell you this, but whoever gave you this info is just plain wrong and I have the documentation to back it up.

In short, DelBene wasn't officially a candidate until January of 2012, which means she doesn't have to file her financial disclosure until May 15. Simple as that.

But don't just take my word for it.

Here's the link that states people who qualify as candidates in the election year(in our case, 2012) must submit a report within 30 days of becoming a candidate or by May 15, whichever is later.

http://ethics.house.gov/...

Remember that DelBene declared in January of 2012. http://seattletimes.nwsource.com/...

Now, if you want to dispute this with your mentioned claim about March 2011 expenditures, that's a pretty ridiculous claim. Those are expenditures leftover from her 2010 race. As in, a totally different election from a totally different cycle.

And just so you know, she filed her financial disclosure forms for the 2010 race on time.

We've checked with folks at House Ethics, and tripled checked statute on this. DelBene isn't required to file a financial disclosure until May 15 because she was not a qualified candidate until 2012.

So let me be clear, she wasn't a candidate for anything in 2011. Her disclosure forms are due May 15th of 2012.

If you want to discuss further, I'd be MORE than happy to. Really, anything to get the true facts out there and dispel the misinformation in your post.

Your post is incorrect in its analysis of FEC compliance. And it makes a pretty significant false accusation. I hope you're willing to change it accordingly with the correct facts.

It's hard to know if the DelBene campaign is dishonest or just ignorant. Let's just assume for a minute that Shelton is right about the March 2011 expenditures not triggering the ethics disclosure requirement. DelBene's staff says that she "wasn't a candidate for anything" in 2011. Really? Then why I do have this FEC disclosure from the last quarter of 2011—a quarter in which she spent over $5,000 and thus would have triggered a 30-day requirement to file a personal disclosure form, which she still has not filed? This disclosure, after all, is for DelBene for Congress in the First District of Washington. It's not like she's running for office on the moon.

So how does Viet Shelton respond? By claiming that the FEC's "testing the waters" language allowed DelBene to spend over $5,000 without actually being a candidate. At this point, it is again hard to know if the DelBene camp is being dishonest or plain ignorant. Again, in the interests of disclosure, I'm quoting the email from Viet Shelton in full:

Dante-

Before we go too far down the rabbit hole, I should let you know that we've consulted with election experts, campaign finance lawyers and folks at House Ethics folks to triple check this a while ago. And all concluded we are in compliance and DelBene's financial disclosure is due May 15.

To start, the $5000 threshold is for expenses related to a person's candidacy or 'campaigning', not all spending. DelBene was not a candidate under FECA and the House Ethics manual defers to FEC as to whether a person meets the definition of a candidate.

I've attached some documentation from the FEC candidate guide that should clarify things.

The FEC has a carve-out for “testing the waters” activities that do not trigger candidacy nor registration under FECA.  The FEC Candidate Guide explains this exemption:

“An individual who merely conducts selected testing the waters activities that fall within the exemptions in FEC regulations that are discussed in Section 1 below (but does not campaign for office) does not have to register or report as a candidate even if the individual raises or spends more than $5,000 on those activities (i.e., the dollar threshold that would normally trigger candidate registration (which is discussed in Chapter 2)).”
So expenditures during the last quarter of 2011 are “testing the waters” expenses, NOT promoting her candidacy, cause she WASN'T a candidate.  The district lines were not drawn until the very last hours of 2011 and Suzan was not a candidate until 2012 (when she filed her Form 2).

As for the Q1 2011 disbursements, they were leftover expenses from the 2010 campaign in the WA08. Thus the reason why the forms were labeled for the WA08, cause that was what she was running for the PREVIOUS year which she did file disclosure forms for.

 Under your logic, all losing campaigns that are spending the following year(and wrapping up expenses, as many campaigns do) have to file a new financial disclosure report for a race they aren't even running in but because of costs from the race they just lost. That doesn't make sense or make them a candidate for anything.

Hope this helps.

The other option for the DelBene communications team is that they simply do not know how to read. Rather than summarizing my response here, I'll just quote it in full.
Viet,

This is not my first rodeo. Your "testing the waters" defense does not apply here. To begin with, "testing the waters" exempts an individual from having to file  with the FEC. It does not allow a committee that has filed campaign expenses with the FEC to claim that those expenses are retroactively not campaign expenses. These are expenses that your campaign filed with the FEC; hence, they are campaign expenses, not testing the waters expenses.

Secondly: even if you wished to claim that these expenses were only for testing the waters and you mistakenly filed an FEC report, it doesn't change the fact that the expenses you reported were for staff (Nicholas Jackal) and a voter file (NGP VAN). These are not "testing the waters" expenses along the lines exemplified by the FEC, such as travel and polling.

And even if there were disputes on these issues, allow me to quote directly from the "testing the waters" provisions you are citing:

"Certain activities, however, indicate that the individual has decided to become a candidate and is no longer testing the waters. In that case, once the individual has raised or spent more than $5,000, he or she must register as a candidate. Intent to become a candidate, for example, is apparent when individuals:
- Make or authorize statements that refer to themselves as candidates (“Smith in 2012” or “Smith for Senate”);"

Your campaign filed a Q4 2011 FEC report wherein you spent over $5,000 under the byline "Delbene For Congress"--the EXACT example the FEC guidelines stipulate as a declaration of candidacy, as well as spending an amount that would have triggered a 30-day disclosure requirement.

Consequently, I am confident in my assertion that your "testing the waters" defense does not apply. I am not sure what assurances you have gotten from the Ethics Committee; if, however, you have gotten written assurances from the FEC or the Ethics Committee that your specific case will not result in problems (not based on the narrative you have advanced regarding "testing the waters," but a ruling regarding the specific filings made by your campaign), I would be more than happy to see it. Otherwise, I stand by my assertion that your campaign is at severe risk of being the target of a politically motivated ethics complaint that could severely damage your candidacy and risk handing the seat to the Republican, should you advance to the general.

The DelBene camp has a major problem. Not only is their campaign guilty of a substantial ethics violation that could doom them in a general election, but their campaign staff seems, at face value, to be at least incompetent, if not worse.

Now, I stand by my original comment to Shelton: if they can produce evidence that the Ethics Committee has promised them that given all the evidence, they still have nothing to worry about, I will post it. Until then, I stand by my assertion: DelBene can be easily damaged by a Republican in a general election, and she is not the safe choice for Congress, despite her ability to self-fund. Democrats who are supporting her for those reasons should seriously contemplate going in another direction.

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Comment Preferences

  •  Tip Jar (12+ / 0-)

    oops. I hope the gate wasn't too expensive.

    Twitter: @DanteAtkins

    by Dante Atkins on Fri May 04, 2012 at 11:56:13 AM PDT

  •  I think it is reasonable (3+ / 0-)
    Recommended by:
    msblucow, grover, Lujane

    ...for the campaign to provide evidence they've been cleared of any wrong doing.

     It looks to me like there is serious trouble here and they need to dispel it.

    •  Yeah (1+ / 0-)
      Recommended by:
      Lujane

      Why not provide evidence that this was cleared? There has to e-mails back and forth with staff on it.

    •  Don't you think... (0+ / 0-)

      ...it would be reasonable to provide evidence of wrong doing as well?

      What it looks like to me is two different interpretations of the FEC guide.

      I have my opinion which you can see on Dante's original article.

      But it would seem to me that before making a serious accusation, one would check to make sure it's actually 100% true.

      How screwed can you get for libel?

      •  I already did provide evidence of wrongdoing (0+ / 0-)

        Based on her campaign filings, DelBene needed to have filed a personal finance disclosure by now, or risk facing a felony ethics investigation. She didn't file it. That's the wrong-doing. It's pretty open and shut, actually, and it could come back to bite Dems in November if DelBene advances to the general.

        oops. I hope the gate wasn't too expensive.

        Twitter: @DanteAtkins

        by Dante Atkins on Fri May 04, 2012 at 05:45:58 PM PDT

        [ Parent ]

  •  unbelievable (0+ / 0-)

    Do candidates usually "test the waters" by filing with the FEC that they're campaigning?

  •  you're executing a smear campaign. (5+ / 0-)
    Recommended by:
    Lawdog, badger, Bmeis, thunderchi, dem4evr

    Lewis & Clark Law class of 2015

    by James Allen on Fri May 04, 2012 at 12:30:37 PM PDT

    •  Evidence for that statement? (0+ / 0-)
      •  I'd like to see more evidence for this smear (2+ / 0-)
        Recommended by:
        David Nir, Bmeis

        that Dante is pushing.  

        The liberal website Daily Kos went with a story that opponents of Democratic establishment First District Congressional candidate Suzan DelBene (running against netroots fave Darcy Burner), have been shopping around town: DelBene has run afoul of federal elections law. The story doesn’t appear to hold up.

        Lewis & Clark Law class of 2015

        by James Allen on Fri May 04, 2012 at 12:38:09 PM PDT

        [ Parent ]

        •  Look (1+ / 0-)
          Recommended by:
          Lujane

          Dante has made it pretty clear that a plain reading of the regulations shows that DelBene hasn't filed a required report, the absence of which is considered pretty serious by law.

          Maybe it's true that House Ethics has assured DelBene that her situation doesn't require her to file her personal financial disclosure until May 15. If that's the case, their campaign could clear this up pretty quickly.

        •  I'm no great fan of Burner. (3+ / 0-)

          But allegations of ethics violations need to be resolved before they have a chance to hurt us in the general election.

          One can call them "smears," or one can call them getting your ducks in a row, and getting your house in order.

          After being represented by Jay Inslee for many years, I'll be furious if we lose WA01 to the GOP because a Dem candidate (and I don't care WHO it is) can't manage to follow the rules and reasonably show that she has done so.

          Prove it now or step aside and run next election. There's too much at stake.

          © grover


          So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

          by grover on Fri May 04, 2012 at 01:03:02 PM PDT

          [ Parent ]

        •  You do understand (0+ / 0-)

          That this diary refutes the publicola piece in its entirety?

          oops. I hope the gate wasn't too expensive.

          Twitter: @DanteAtkins

          by Dante Atkins on Fri May 04, 2012 at 01:48:35 PM PDT

          [ Parent ]

          •  I understand that you want it to (1+ / 0-)
            Recommended by:
            badger

            and believe it does.

            Lewis & Clark Law class of 2015

            by James Allen on Fri May 04, 2012 at 01:49:29 PM PDT

            [ Parent ]

            •  and how doesn't it? (0+ / 0-)

              publicola made the "testing the waters" defense. This diary proves beyond a shadow of a doubt that that defense is inapplicable.

              oops. I hope the gate wasn't too expensive.

              Twitter: @DanteAtkins

              by Dante Atkins on Fri May 04, 2012 at 03:19:02 PM PDT

              [ Parent ]

              •  No it doesn't (0+ / 0-)
                An individual triggers registration and reporting responsibilities under the Act when campaign activity exceeds $5,000 in either contributions or expenditures. (Money raised and spent to test the waters does not count toward this dollar threshold until the individual decides to run for federal office or conducts activities that indicate he or she is actively campaigning rather than testing the waters. (See Chapter 1, “Testing theWaters.”)

                Working people of America unite.

                by Sarge in Seattle on Fri May 04, 2012 at 05:24:18 PM PDT

                [ Parent ]

                •  like I emailed to Viet: (1+ / 0-)
                  Recommended by:
                  Lujane
                  And even if there were disputes on these issues, allow me to quote directly from the "testing the waters" provisions you are citing:

                  "Certain activities, however, indicate that the individual has decided to become a candidate and is no longer testing the waters. In that case, once the individual has raised or spent more than $5,000, he or she must register as a candidate. Intent to become a candidate, for example, is apparent when individuals:
                  - Make or authorize statements that refer to themselves as candidates (“Smith in 2012” or “Smith for Senate”);"

                  Your campaign filed a Q4 2011 FEC report wherein you spent over $5,000 under the byline "Delbene For Congress"--the EXACT example the FEC guidelines stipulate as a declaration of candidacy, as well as spending an amount that would have triggered a 30-day disclosure requirement.

                  The very fact that she filed as DelBene For Congress counts as an intention to run for federal office, by the very FEC guidelines you're quoting. QED. It's open and shut.

                  oops. I hope the gate wasn't too expensive.

                  Twitter: @DanteAtkins

                  by Dante Atkins on Fri May 04, 2012 at 05:40:18 PM PDT

                  [ Parent ]

                  •  No, it isn't (1+ / 0-)
                    Recommended by:
                    dem4evr

                    Your logic is circular and your example flawed. You are saying the filing triggered by the decision to run is evidence she was already running. That's not what "referring to themselves as candidates" means. DelBene did not refer to herself as a candidate in 2011. She filed a form after she became a candidate in 2012. That is entirely different.

                    Working people of America unite.

                    by Sarge in Seattle on Sat May 05, 2012 at 01:39:39 AM PDT

                    [ Parent ]

                    •  no, that's wrong, Sarge (0+ / 0-)

                      she reported expenses she incurred in 2011 under the organization "DelBene for Congress." You don't incur expenses NOT as a candidate and then report them as candidate expenses later. That's not how this works.

                      oops. I hope the gate wasn't too expensive.

                      Twitter: @DanteAtkins

                      by Dante Atkins on Sun May 06, 2012 at 11:42:09 PM PDT

                      [ Parent ]

    •  WOLF! OMG!!! I SEE A WOLF!!! (0+ / 0-)

      Please.

      If you're going to accuse someone of a smear campaign, especially someone who is a respected member of the netroots, then you best be backing it up. Otherwise, I'd keep your little boy that cried wolf act to yourself.  Feel free to defend your position.

      •  if you're going to call for someone to defend (3+ / 0-)
        Recommended by:
        David Nir, James L, badger

        their position, perhaps you should read a full comment thread to see that they may have already posted a link corroborating their position 15 minutes earlier.

        Lewis & Clark Law class of 2015

        by James Allen on Fri May 04, 2012 at 12:56:43 PM PDT

        [ Parent ]

        •  Again (0+ / 0-)

          Feel free to defend, prove no one violated the law. Collaborate the story that they were cleared of any wrong doing. Give us something. Until then, stop accusing people of running smear campaigns because you don't like what they're saying.

          That article proves nothing fwiw. I've already read it.

        •  Look, I like DelBene. (0+ / 0-)

          Quite a lot, actually. But dang, if she can't stand up to the scrutiny of Dkos and a couple emails from Dante, what does the future in the election  hold for her?

          She absolutely should understand that following the letter of the law -- right down to the teeniest detail-- matters, and that she needs to be able to prove it. She's smart. She's a savvy businesswoman. She was the director of the Dept of Revenue (our taxing entity) for gosh sake.

          I hope this is all for naught. But let's get it all out now, for her sake and ours.

          © grover


          So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

          by grover on Fri May 04, 2012 at 01:48:55 PM PDT

          [ Parent ]

        •  this diary (0+ / 0-)

          inherently disproves the publicola piece. the publicola piece makes the "testing the waters" defense. This diary, which quotes my email to Viet Shelton with DelBene's campaign, blows the "testing the waters" defense...well...out of the water.

          You haven't yet specified why I'm wrong.

          oops. I hope the gate wasn't too expensive.

          Twitter: @DanteAtkins

          by Dante Atkins on Fri May 04, 2012 at 03:18:05 PM PDT

          [ Parent ]

  •  This is baffling (1+ / 0-)
    Recommended by:
    grover

    Does her campaign truly not understand election law?

    •  If not, she needs to hire someone who does. (0+ / 0-)

      There are plenty of capable lection law attorneys floating around.

      © grover


      So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

      by grover on Fri May 04, 2012 at 01:51:08 PM PDT

      [ Parent ]

  •  Need some professional perspective here (2+ / 0-)
    Recommended by:
    badger, Bmeis

    I can see Dante's argument, but I could also see it could be armchair lawyering. Since it's not fair to ask people to prove a negative, is anyone able to secure something specific and official, even a commentary about a parallel case, that might be more definitive than "Yes!" "No!"?

  •  If this really is a problem why is it not in the (0+ / 0-)

    Seattle Times?

    •  Good question: (0+ / 0-)

      Also, does anyone know if the FEC is looking into this?

      I think that would make things a lot clearer.

      •  That's sort of the point (0+ / 0-)

        They have to get someone with jurisdiction, like the House Ethics Committee, to refer it to DOJ. House Ethics isn't going to move forward, if this is a problem, unless DelBene's the nominee.

      •  The FEC doesn't look into it (0+ / 0-)

        because the disclosure requirement in question is in the hands of the House Ethics Committee, and they can do exactly what they want with it--sit on it, pursue it, whatever. And that's the danger right now. the Republicans could very well use this issue to pursue an investigation, refer it to the Department of Justice, and claim that DelBene is under investigation for an ethics felony.

        oops. I hope the gate wasn't too expensive.

        Twitter: @DanteAtkins

        by Dante Atkins on Fri May 04, 2012 at 05:42:26 PM PDT

        [ Parent ]

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