Thursday, February 18, 2010

An Elected Maryland Democrat Fundraising During Session?

Is Democrat Delegate Heather Mizeur illegally soliciting campaign contributions during the legislative session?

Maryland election law states:

Contributions may not be solicited, accepted, or deposited by the Governor, Lieutenant Governor, Attorney General, Comptroller, a member of the General Assembly, or a person acting on behalf of any of these individuals, during the Legislative Session, which begins on the second Wednesday in January of each year and continues for 90 days.
If you look at Mizeur’s ActBlue page it appears she is currently soliciting donations.

If you click the “Contribute” button is takes you to a contribution page where you can fill out the information to make a campaign donation to Mizeur.

Just to be sure I clicked on the link to her District 20 colleague, Tom Hucker, and you get a message saying “Contributions not currently accepted via ActBlue.”

The same message comes up rest of the elected Democrats on the ActBlue directory for the House of Delegates.

While we applauded Delegate Mizeur’s efforts on behalf government transparency, she still needs to play by the rules.

We find it quite cheeky that Maryland’s corporately funded Democratic Party is busy manufacturing outrage over Andy Harris’ chief of staff legal fund raising while one of their own elected officials is illegally soliciting campaign contributions during the legislative session.
As we like to say here at Red Maryland Turnbullshit happens.


Heather said...

I want to thank Mark Newgent on Red Maryland for noticing that my ActBlue page was still set up to accept contributions. Unfortunately, he made two bad assumptions – first, by assuming that I knew; and second, by assuming that I was fundraising during the legislative session.

In fact, I didn’t know, and there has not been any fundraising during the session. I had ActBlue take down the page immediately, and here’s the rest of the story.

If it seems odd that mine was the only ActBlue account still active, it is.  Their team habitually deactivates the accounts of elected General Assembly members while allowing non-elected candidates to keep raising. They’re not sure why mine remained active, but they took it down within minutes of realizing their mistake.

More importantly, there were no actual funds raised through ActBlue during the legislative session or – as it turns out – ever.  We set up an ActBlue account in the summer of 2009, in anticipation of launching my new website.  But we went back to the drawing board on the website, and we’ve never either directed anyone to our ActBlue page nor received a single contribution there.  Not one.

On the other hand, about a dozen people have tried to contribute after the General Assembly session started – totaling more than $1,500 in late-arriving checks – and each donation was immediately returned.

It’s the essence of an open and transparent government: citizens point out an oversight, and it gets fixed. And then there’s accountability: the buck stops with me and I take responsibility for the oversight.

So here I am: a blue Democrat sending a thank you to Red Maryland.

Best wishes,
Heather Mizeur

Mark Newgent said...

Delegate Mizeur,

Thank you for your thoughtful post.

However, I beg to differ with part of your analysis .

First you assign and assumption to me that I never made. I never said you knew about your open ActBlue contribution site. I merely pointed out it was open for contributions.

Whether you knew the page was open or not it still constiutes a solicitation--the operative word in the state election law I cited and emphasized. An open webpage still constitute the act of fundraising. Whether contributions were received is irrelevant to my point. Unless, of course, we hold fundamentally different conceptions of the deifnition of the word "Contribute."

That said, I applaud your fortright effort in taking accountability.

Jim said...

Mark, when you said "it appears she is currently soliciting donations", that sounds like you are saying she knew that this was going on. Unless you have a conservative definition of the word "is".

So, when I put up on MY website an opportunity for everybody to contribute to each and every Delegate and Senator then THEY are guilty of solicitation under the law? Even though Delegate Mizeur doesn't own ActBlue and has no control over the site, she is still guilty?

Quite a stretch, slim.

streiff said...

It's only a stretch if you're so ignorant of basic campaign law that you shouldn't be commenting on the subject or being willingly obtuse.

Read Delegate Mizeur's comment above. Then shove off.

jsmdlawyer said...


Let's assume that Delegate Mizeur was not as forthcoming and charming as she has chosen to be, which is not at all surprising to those who know her well, as I do.

Let's instead assume that this matter was being resolved in a courtroom rather than on a blog.

I submit that the case would have no chance whatsoever of success. I suspect it probably wouldn't even be brought to court.

First, let's begin with the law, which Mr. Newgent has not correctly stated. This is not his fault, I hasten to add; he has made the understandable mistake of assuming that what the State Board of Elections says about election law is accurate. I can tell you from experience that such reliance, while understandable, often ends badly.

The BOE says that "[c]ontributions may not be solicited . . . during the Legislative Session . . ."

Actually, the law says no such thing. Instead, Section 13-235 of the Election Code states that an elected state official "may not . . .

(1) receive a contribution;
(2) conduct a fund-raising event;
(3) solicit or sell a ticket to a fund-raising event;
(4) deposit or use any contribution of money that was not deposited prior to the session."

The law does not say that an elected official can't solicit a future contribution not involving a ticket to a fund-raising event; as has become an unfortunate habit of the BOE, it has mischaracterized the law, as can be plainly seen.

Now, just because something is legal, doesn't make it a smart thing to do. I think most officials, in an appropriate abundance of caution, don't solicit contributions, if for no other reason than it looks bad. But as a matter of "basic campaign law," as you put it, there is nothing in the law that bars a solicitation for a future contribution during a legislative session.

Second, the statute only applies to "an official described in subsection (a) of this section, or a person acting on behalf of the official." The Act Blue page is not owned, operated, controlled or otherwise attributable to Delegate Mizeur. In fact, it says, very clearly, that the page is "Paid for by ActBlue ( and not authorized by any candidate or candidate's committee."

So while Act Blue may have been soliciting in some manner, Delegate Mizeur was not.

Third, the term "solicit", as defined in federal law, makes it clear that one cannot unknowingly solicit a campaign contribution as you suggest. See 11 CFR 300.2(m) (solicit defined as "to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value." "Ask, request or recommend" clearly indicates an active participation in either a conversation or some form of written communication. An "unknowing solicitation," therefore, is an oxymoron.

Finally, even if you could somehow get past all of the above, nothing on the Act Blue site remotely meets the definition of "ask, request or recommend." All of the language on the site presupposes that anyone on the site is interested in Democratic candidates. At no point, however, does the Act Blue site actually make a pitch for such candidates, either specifically as to one candidate or in the aggregate.

Heather Mizeur chose, as she usually does, to be forthright about this situation and take responsibility. That doesn't mean, however, that the premise of the original post was correct ("illegally soliciting campaign contributions during the legislative session"). It's pretty clear, as I demonstrate above, that it wasn't. If there's some other "basic campaign law" of which you're aware that contradicts any of what I've said, I'd sure like to hear about it.

Jonathan Shurberg

streiff said...

this is all very attractive spin if you believe the law allows funds to be raised on behalf of someone illegally and for them to avoid responsibility for it. But it doesn't.

There is no such legal position as "fundraising for me without my knowledge." It doesn't exist.

Delegate Mizeur did the right thing. That doesn't keep it from having been a technical violation of the law.

And I missed the part in the post where anyone talked about prosecution so while I appreciate your scholarly dissertation on what would, in your view, go into a decision to prosecute it was, like the rest of your argument, nothing more than dousing a straw man with kerosene and setting him alight.

Bruce said...

I do not know that the existence of a website, with no further action by the candidate/committee, constitutes "solicitation" in MD. If the site was set up before the beginning of the session, not touched and left there, it's no more a solicitation during the session arguably than paper ads printed distributed before the session. I don't know that the failure to take it down constitute an act of solicitation.

The bigger issue, though, is that no donation may be deposited or collected during the session (for sitting delegates/senators). THAT is bigger than the issue of the borderline "solicitation during" issue. Streiff, do you have MD precedent for the proposition that the failure to take down a website constitutes a "solicitation" for every day that the website remains open?

I invite the readers to contrast this to Alex Mooney's site, which contains a number of fundraising references on it right now, though arguably outdated ones. They are promoting "fundraising" for Senator Mooney in a very general sense, but don't explicitly allow for a donation or state "donate now."

Jeffery said...

So can a legislator have a "contributions" page on their personal website during the session? Just curious ie:

Mark Newgent said...


You have to explain why Tom Hucker and all other elected Democrats on ActBlue DID NOT have the the "Contribute" Button Active. AND when you do click on their site a message appears stating contributions are not accepted at this time as opposed to Mizeur's that still allowed you to make a contribution.

Even going to O'Malley's official site when you click "Donate" you get a message saying donations cannot be accepted at this time.

Mizeur had nothing like this on her ActBlue page, which her campaign set up.

Also had this been a Republican the MDDems would be hyperventilating and you would be parsing each letter of the law nine ways to Sunday to convict them.