McAdams, no surprise, was defensive of Green, and continued to rail against a charge that I didn't hear anyone making--that this was "dirty money"--and that Green is somehow slimy for having it. I'm not calling Green slimy, certainly, and no one else did either. Not even the Wisconsin Democracy Campaign, which brought the complaint originally, called it "dirty money"; they just merely said that the PAC transfers were in violation of state law. In addition, we have since learned that, among other things, individual contributions in that federal transfer were made by people who have also maxed out their donations to Green's state campaign, putting a number of individuals over their statutory contribution limits. Again, this money is not "dirty," and no one is accusing Green of "laundering" money--but McAdams apparently likes his straw men and kept that up for much of the hour, including in response to my question.
I called in (I was, I think, the second caller after the 4:30 news break) because I wanted to bring up a key element in the judge's decision, which was that Green's transfer of funds actually seems a violation of federal law--something neither McAdams nor the other callers had mentioned. Even the on-air producer seemed incredulous when I told him that's what I wanted to talk about, because he'd apparentlty not heard of it either. I made another point first, though, because I heard McAdams say that Green's campaign had treated the transfer of funds as a "lump sum," rather than as individual contributions, and that that was what made the transfer okay.
For some 30 years, I said, the Elections Board has required all of these transfers to be itemized; in other words, Green could not have assumed this could be treated as a lump sum rather than itemized contributions. Then I made my point about BCRA (McCain-Feingold): Under the law at the time Green made the transfer, he would have had to comply with state law, which made at least some of that transfer illegal. In fact, under McAdams's assertion that the transfer was a lump sum, then that actually would have made almost all of that transfer illegal. From the Wisconsin Dept. of Justice brief (.pdf) in the case:
In late 2004 [. . .] Congress amended BCRA by [. . .] allow[ing] federal campaign committees to move funds to state campaign committees, but only in the form of "donations," and such donations were required to be made in conformance with state law. The impact of this change in BCRA for Wisconsin was that a federal campaign could now make a donation to a state or local campaign committee in Wisconsin, subject to the applicable laws regarding such donations. In Wisconsin, a committee is limited by statute to only contributing certain amounts to campaigns. For Governor, for example, a committee may contribute no more than $43,128. Therefore, following the 2004 amendments to BCRA, a federal campaign committee was limited to contributing no more than $43,128 to any candidate for Governor in Wisconsin during an election cycle. [. . .]Or, for my Minnesota readers, a gray duck.
At the time the federal funds were converted for Green, the law governing the use of federal funds in a state campaign was codified in [federal and state law]. Nowhere in either statute was the wholesale conversion of federal campaign funds to a state campaign allowed. Indeed, quite the opposite was true.
If the federal campaign committee funds are "converted" (as Green maintains) to a state campaign committee as separate, segregated contributions, then the contribution limits would apply. Alternatively, if the converted federal campaign committee is but another committee and is converted as a single, unitary lump sum, that amount becomes a lump sum that is subject to the limits of a committee [i.e., $43,128]. To suggest, as Green does, that it can avoid compliance with [Wisconsin law's pre-January 25, 2005] limits simply by calling these funds a "conversion" rather than a contribution (when the term "conversion" does not even exist in the state statutes) would allow coy semantics to undermine the clear mandate and purpose of [Wisconsin law]. A duck does not become a goose simply because one calls it a goose.
So McAdams wanted it both ways--as, apparently, Mark Green does. The transferred funds came in a lump sum, so that they're not subject to limits on PACs and individuals. But at the same time, they were funds from PACs and individuals, so they're not subject to the $43,128 limit on "donations" as provided by the federal law (incorporating Wisconsin statues) that was in effect at the time.
Now, unfortunately, I was in my car, and I didn't have all of that in front of me. If I did--and if a low cell battery and time constraints would have allowed me a follow-up--I would have challenged McAdams's curt dismissal of my question, since he still seemed stuck on the "the day after" line about the State Elections Board's Emergency Rule.
Now, it is true that the SEB met the day after Green transferred his money (it was nice of the SEB to give notice when that meeting would be, so Green could have a deadline). But that meeting, on January 26, 2005, was, as the DOJ notes, "for the purpose, among others, of reviewing potential rule revisions to harmonize the Board's rules with the changes in federal law" that took effect December 8, 2004. Regardless of when the rule changed, I wanted to tell McAdams, the law prohibited the transfer as it happened at the time it happened. Period.
I'm guessing that McAdams had not read the DOJ's brief, since he seemed oblivious to all of that. I'm also guessing he hadn't read the judge's decision, since he also seemed oblivious to the ruling itself. And that ruling, as a part of making the case that Green would not get the injuction, made it clear that the logic McAdams was using was both faulty and contrary to the plain language of all the governing statutes--federal and state--on the day that Green made his transfer. From the decision:
In short, a "donation" under [BCRA] is a "contribution" subject to the limitations and other regulations contained in Chapter 11 of the Wisconsin statutes governing the use of money in Wisconsin political campaigns. Thus, even if the court were to adopt Green's argument that the Elections Board should be enjoined from enforcing its Emergency Rule and Order because they are illegal for any number of reasons--arguments which raise some serious and legitimate questions--Green still cannot succeed in the ultimate merits of this case because the Court cannot grant the requested declaratory judgment finding "that funds a state campaign committee has on hand when it converts from a federal registration are not counted against Wisconsin's contribution limits." Controlling federal law, through its incorporation of Wisconsin's campaign finance law, in fact compels the opposite finding.McAdams's response to me completely avoided the implications of the judge's ruling; instead he railed against people claiming Green was "laundering dirty money"--a claim I didn't make at all. McAdams also tried the Tom Barrett precedent, ignoring the fact that the law has changed since 2001. ("Green seeks to exploit this same [Barrett] loophole," the DOJ notes, "even though the board's decision in Barrett was not only wrong as a matter of law, it has long been rendered moot by intervening changes in the law on both the federal and state level.")
For the same reasons that Green cannot demonstrate that he will likely succeed on the merits of the case, he falls short of showing irreparable harm if the temporary injunction is not granted. That is to say, whether the Elections Board is enjoined from enforcing the Emergency Rule and Order or not, Green's duties under the law remain the same. Under [BCRA] and Chapter 11 of the Wisconsin statutes which it incorporates, Green must subject the donation from the federal campaign to the provisions of Wisconsin law governing "contributions" to political campaigns. Thus, at least at this very preliminary stage of the lawsuit where pleadings are not even complete, it is simply unnecessary for this Court to enter the thorny procedural and constitutional thicket created by the Election Board's actions in promulgating the Emergency Rule and issuing its Order, let alone allow it to sidetrack the Court's decision on Green's Motion for Temporary Injunction. The bottom line is that the Elections Board reached the correct result, regardless of the infirmities, if any, in its process.
So here are my further questions to McAdams: How can you be so completely dismissive of the law? Do you really mean to say that you believe that Green's transfer should not have been limited by what Wisconsin law allowed on the day he made the transfer? Why do you insist on trying to have it both ways--that these were individual and PAC monies but not subject to the limits on those? How is it that you can spend a significant portion of your hour on the radio battling straw men, instead of addressing the issues of substance raised by callers, the DOJ, and the judge's ruling?
I realize, of course, that the radio conversation is over. But, Professor, you're welcome to use the comments below to answer.
On a related note, and a propos to my post of last Friday, Seth Zlotocha made a prediction yesterday that turned out to be right. Sigh.