Discounts for law-breaking politicians

Cross-posted from ICPR's blog, The Race is On:

As the state struggles with a massive budget crisis, as the CTA crumbles for lack of funds and schools are forced to borrow money the state should have appropriated by now, name one state agency that regularly tries to cut the penalties they assess law breakers? Ladies and gentlemen, we give you: the State Board of Elections.

Funny, that in this case the law breakers are all political committees.

Late last week, the Sun-Times reported that a campaign fund for Cook County Board President Todd Stroger, facing a quarter million dollars in fines, is likely to see that penalty amount reduced by 90%. It's frustrating enough that the State Board of Elections is, alone among cash-strapped state agencies, determined to slash fees and penalties for violations of state laws to the lowest possible legal amount. Even more galling is Stroger for President's argument for an even lower penalty.

Stroger for President's penalties result from the failure to report donations received in the 30 days before the 2006 General Election. The law requires that PACs report donations of more than $500 received within the last 30 days before an election within two business days. These A-1 reports let voters know where candidates are drawing financial support in the final days before voting, when candidates are most eager to raise cash, and donors are best positioned to extract promises in return.

The staff at the State Board of Elections determined that Friends of Todd H Stroger for President failed to report an astounding 78 donations -- totaling more than a quarter of a million dollars -- as required by law. The penalty for failing to report those donations can be, by statute, as much as 100%. Statute outlines these criteria for the Board to consider when setting the fine:

(1) whether in the Board's opinion the violation was committed inadvertently, negligently, knowingly, or intentionally
(2) the number of days the contribution was reported late; and
(3) past violations of [the Election Code].

In practice, however, the Board has almost always assessed penalties of 10% of the unreported donation -- the bare minimum allowed by law. No matter whether the violation as intentional, no matter how late the contributions were reported; indeed, without any apparent regard for the criteria set in statute. The Board’s consistent practice to reduce the penalty to the smallest possible amount runs counter the evaluation that statute directs the Board to undertake.

Now comes the Stroger for President committee, arguing that even 10% is too high. We cannot fault their attorney for making an argument in defense of his client; that’s the lawyer’s job, after all, and who wouldn't want to pay less for breaking the law? But we can fault the Board for encouraging PACs to discount the seriousness of this violation. Setting penalties at the very lowest end of the statutory range regardless of the reasons for the violation has now encouraged PACs to try to jawbone them down even lower. The Board's pattern of routinely giving political committees breaks no other agency would give to the general public fosters the sense that these public disclosure rules don't really matter.

Obviously, we think the Board should reject Stroger for President’s arguments and assess penalties on the entire amount of non-reported contributions. The Board should also rethink their practice of automatically cutting penalties to 10%. Telling candidates that a violation will cost only 10% may encourage willful hiding of potentially troublesome donations. If disclosure means anything, if the public's right to know is to have any meaning in the context of an election, the Board needs to set real standards and assess penalties commensurate with the scope of the violation.