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Law > Politics and Prejudices

Getting it wrong

On Kwame-proofing our pols' campaign funds

 

Published 8/12/2009

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Imagine that you foolishly are in the habit of leaving your back door unlocked. One night, a burglar comes in and steals all your money.

You flip out, call the cops, and they catch him. A lengthy legal process follows, but eventually he is convicted and sent to the slam. Most of your money is gone, but the crook, after just a few months in jail, gets out, and is ordered to get a job and pay a little of it back.

While this is winding down, a friend stops by and suggests that you might want to start locking your door. Would you say, "What? Huh? I don't need to worry about that now."

Hopefully not, if you have the intelligence of a ripe persimmon. But if do think you don't have to worry about security after you've been robbed, congratulations. You may have what it takes to serve in state government, maybe even as Michigan's secretary of state.

Let me explain. Yes, this involves our dreary homegrown thug, Kwame Kilpatrick. For a change, there's also a hero: Maurice Kelman, a longtime professor of constitutional law at Wayne State University. Now retired, Maury still thinks the law matters, and the U.S. and Michigan constitutions ought to mean something.

Last year, after the Kwamester had been fingered for perjury, he started bulking up on high-priced lawyers. Kelman figured he wasn't doing it for nothing. He realized the mayor was using his campaign fund to pay his criminal defense lawyers. As Kelman understood the law, this was illegal. Trouble is, there had never been any ruling by any court, or any opinion by the secretary of state or attorney general about this, perhaps because we haven't had many crooks on the scale of our former mayor.

At the very least, it was highly questionable. People gave KK that money because they believed in what they thought he was trying to do as mayor. They didn't give it so he could try to cover up his lies, some of which cost the impoverished city more than $9 million.

You'd think this at least would deserve a ruling. Kelman knew he should start with Secretary of State Terri Lynn Land, whose department oversees elections. He asked her for an "interpretive statement."

She wouldn't comment, nothing, nada, zip, even after he cited specific provisions in the law. Finally, a little more than a year ago, he got a mildly snotty letter from a bureaucrat named Ann Corgan, whose title is "director, legal and regulatory services administration."

The department wasn't going to issue any interpretive statement, she told him, for a couple reasons. First, "it does not appear that you are a person whose course of action would be bound by an interpretation offered by the department, regardless."

If I understood that correctly, that's like saying that unless you are planning on killing someone, they aren't going to tell you what the laws against homicide are.

Corgan then added that Kelman's request "furthermore does not include any statement of facts, which is essential to any meaningful analysis." That too is nonsense. In fact, back in the 1980s, then-Secretary of State Richard Austin several times gave Professor Kelman interpretative statements on election law.

Eventually, it turned out that KK had indeed used almost a million dollars ($976,493.29 to be precise) to pay his criminal defense attorneys. Eventually, Cathy Garrett, the elected Wayne County clerk, went one better and asked the secretary of state for a ruling.

Was using campaign funds to pay your criminal defense attorneys legal or illegal? As an elected official, she wasn't quite as easy to blow off as a retired law professor had been.

So last month, she got a letter, once again not from Secretary Land, but from a different bureaucrat in her office, one Brian DeBano.

This document would be hilarious, if DeBano's writing weren't so bad. Essentially, he said that's not the question Garrett should have asked, that she instead should have asked whether the law prevented Kwame Kilpatrick's candidate funds from being used for legal fees. (Huh?) But, having said that, DeBano made it clear that the secretary of state still didn't want to answer either question. However, he did offer this bizarre comment: "The Department is not expert in the application of federal tax law" but to the extent they did understand, it "suggests that there are circumstances in which the payments of attorney fees for one's defense in civil and criminal proceedings are properly treated as ordinary and necessary expenses under federal law."

What? We are taking about a Michigan campaign finance law, not federal tax law. DeBano, sounding like an escapee from Alice in Wonderland, tells Garrett that Kwame should give her a written statement from the Internal Revenue Service saying what he did was all right.

The rest of his letter is mostly incomprehensible gibberish, though he finally says that Michigan Campaign Finance Law "does not explicitly authorize the use of candidate committee funds for these purposes."

Not surprisingly, the next day the Wayne County clerk ruled that spending your campaign money on lawyers is not illegal, since the secretary of state's office "failed to rule on whether the campaign finance law explicitly or implicitly prohibits their use."

That doesn't have to be the last word, however: Attorney General Mike Cox could still issue an opinion and settle the matter. Unlike the secretary of state, he is a lawyer and the state's chief legal officer. But when I asked him about this last week, he told me his opinion needed to be requested by an elected official.

Professor Kelman has been trying hard to get one, any one of our 148 beloved legislators to do just that. Sadly, he hasn't had any success.

What's really going on here?

Two things, I think, if I can issue a little interpretive statement of my own. Kwame Kilpatrick has been dragged out of office, and everyone wants to forget about his sordid self as quickly as possible. That's understandable, though also, I think, indefensible.

But I suspect something else is at stake here. The people refusing to press for a ruling on this are politicians, who aren't really eager to hear that they can't use their campaign finance funds to defend themselves in court.

Someone, somewhere, should do the right thing. When last I checked in with Kelman, he was pressing my neighbor, state Sen. Gilda Jacobs, vice chair of the Campaign and Election Oversight Committee, to ask the Attorney General for a ruling. So c'mon, Gilda: Step up.


Help for the foreclosed upon:
Rich Homberg, who runs Detroit Public Television, is aware of how awful times are. "There are so many people facing difficult times, layoffs, even the possible loss of their homes that Michigan's public broadcasters are offering help."

Accordingly, his operation, together with WDET-FM and Michigan Radio, has teamed up to offer folks in need as much useful information as possible. "If you know people who need help, please connect them to our Facing the Mortgage Crisis website: facingthemortgagecrisis.org. I've seen it, and it's worth checking out, even if you don't think you are in immediate danger. These days, anyone who thinks they are financially secure probably isn't.

Jack Lessenberry opines weekly for Metro Times. Contact him at letters@metrotimes.com.

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