AUGUSTA — The state’s ethics commission delayed action Wednesday on Clean Election funding in the hope a judicial ruling might be coming soon, but 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 it was unfair 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 about 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 Election 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 them are Democrats or unenrolled.
The lawsuit 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, a lawyer for LePage, argued the governor had not 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, which was 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 his decision will be appealed to the Maine Supreme Judicial Court.
Additionally, candidates have not 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 Election 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 remained hopeful the Legislature will address the issue soon.
André of Waterville says without the $5,075 owed him as a Clean Election candidate, he has been left at a disadvantage in competing with his Democratic opponent, Colleen Madigan, a Clean Election 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 was not able to make a Clean Election payment to his campaign before the new fiscal year began 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 was not certified until July and André said he was not even notified until late June there was going to be a recount.
Wayne said he and his staff went to great lengths to get André paid, including writing two checks — one for him and one for his primary opponent — to be sent to both candidates, with one ultimately having to be returned. 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 has even floated ideas with which he is uncomfortable, 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 said he was the “presumptive nominee,” so he should have been issued a check. 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, a lawyer for the ethics commission, said under the Clean Election 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 because his staff 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 III of Waterville said the commissioners were not going to make a decision at the Wednesday meeting, but they might call a special meeting depending on how the court case goes. To call a special meeting, the commission must post notification 24 hours in advance.
André, who said he does not want to give up his status as a Clean Election candidate, wants the authority to loan himself the $5,075. Wayne, however, has said this would constitute a violation, as it would technically be considered a private donation. Clean Election 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 of the commissioners.
If a candidate receives Clean Election status but does not collect Clean Election funding, he or she 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 Election 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 André from going door to door and talking to Waterville residents, he said.
While saying he 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 is 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 reduce Waterville’s property 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 Election 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, a lawyer representing Maine Citizens for Clean Elections, told commissioners the law does not permit these candidates to raise funds traditionally. Howe also called on lawmakers to solve the problem.
André said the longer commissioners wait on the Legislature or the courts to make a decision, the more they are destroying the integrity of the Clean Election program.
“There will never be a candidate that trusts the Clean Election program again if they let this happen,” he said.
Maine Ethics Commissioners Richard Nass, left, Chairman William Lee III and Bradford A. Pattershall examine a document Wednesday while hearing a Clean Election complaint from House District 110 Republican candidate Mark André of Waterville at the State Ethics Commission in Augusta. (Kennebec Journal photo by Andy Molloy)
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