Writing on November 27, 2002 to lpus-misc@dehnbase.org, Tuniewicz reiterated this position, saying in part:
“…over the years, before & after adoption of the current policy, the National Director authorized payments to assist candidates in getting on the ballot, helping the LP to achieve its candidate goals. My understanding is that these were typically of a small dollar amount….up to a couple hundred dollars, in essence a filing fee of sorts.
“After the policy change took place, it was *clear*….certainly to me…that direct or indirect campaign support to prenomination candidates was prohibited. PERIOD. I respectfully disagree with anyone who feels differently.“The only exception that I can recall: In states where no primary or convention nomination methodology existed, the say-so of the state chair was typically sufficient to indicate that the candidate was the “nominated” one.
“I continue to have serious misgivings about this transaction, including the manner in which the *characterization* of the transaction was changed on the Party’s books (from campaign support to ballot access), and the size of the contribution (as Mr. Phillies points out, our 2nd largest that year) given the Party’s other serious financial needs at the time.”
Tuniewicz suggests that the payments may also have been improper because they might have constituted an illegal ‘directed’ contribution, a soft-money contribution made to a party with the specific understanding that the money would be channeled to a named candidate. Possible evidence suggesting this possibility includes (i) the payments were made soon after the LNC ‘received a similar-size soft-money contribution from a Massachusetts donor’, (ii) the National Director claimed not to have known who solicited the donation, but (iii) Massachusetts State LP Chair Eli Israel and Howell Campaign CEO Michael Cloud ‘were both aware of the transaction about the time it was happening’, and (iv) the Massachusetts donor also gave substantially to the Howell campaign by direct means.
A variety of Federal Election Commission regulations appear related to the NVO spending for Howell: A national party committee may legally receive up to $20,000 from any contributor other than another multicandidate committee, so the contribution was in principle legal to receive. However, a contribution to a party committee counts against the contributor’s contribution limit to the candidate (here, $1,000) if the contributor knows that a substantial part of his contribution will be spent on behalf of a particular candidate. Furthermore, a National Party Committee may contribute no more than $17,500 to a U.S. Senate candidate during the entire election period (primary and general elections.) In-kind contributions such as gifts of goods or services count against contribution limits in the same way as a gift of money. Finally, when a national party committee makes an in-kind donation the donor committee must notify the recipient committee of the amount of the contribution, so that the recipient committee can report the correct amount.
National Party Committees may also make “coordinated party expenditures” in connection with the general election campaigns of federal candidates. Coordinated expenditures are reported only by the Party committee, not by the candidate committee. There is a legal limit on the extent of these contributions, but for Massachusetts, the legal limit on coordinated expenditures is much larger than the amount given by the LNC to Howell. However, coordinated expenditures may only be made as part of a general election campaign, not as part of the primary election campaign.
Tuniewicz does not entirely specify the legal questions about which he was concerned. There appears to be a range of possible issues. The legal maximum limit on party committee donations to Senate candidates is only $17,500, but more seems to have been given. Careful reading of Howell’s FEC filings finds no indication that the Howell campaign reported either the NVO expenditure or the other expenditures, as would be required if the expenditure had been an in-kind donation to her campaign. Coordinated Party Expenditures are not subject to the $17,500 limit or the candidate committee filing requirement, but refer only to the general election, not to the primary election that was under consideration here.
“Ballot Access” Contributions are not legally limited. However, within FEC regulations “ballot access” funds are funds that _must_ by state law be paid directly to the state in order to place a candidate on the ballot. Massachusetts does not require “Ballot Access” payments from candidates. Finally, in the hypothetical but legal case that the donor knew where much of his money was going, the transfer would have been a directed donation, and directed donations are legally limited to the amount that an individual could have given directly to the candidate.
It is perhaps surprising that the National Director did not know who had solicited the ‘soft-money contribution from a Massachusetts donor.’
Like H.L. Mencken almost said… –It is hard to believe that a National Director is telling the truth when you know that you would lie if you were in his place.” —