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More questions on the Bachmann mailing

Since I posted about the Michele Bachmann mailing a few days back, I've learned more about both the claims made in the brochure, and the questionable ethics behind it. As previously stated, this flyer was paid for by the Bachmann Re-Election Committee, which is Michele Bachmann's state campaign committee. I speculated in the original piece that the reason this piece was paid for by the state committee was because the FEC does not allow candidates to transfer money from a state account to a federal one. Turns out I was right:

Federal law prohibits congressional candidates who are state officials from transferring campaign money from their local accounts to their federal accounts. When a candidate receives a contribution to a federal account and reimburses the contributor from a separate state account, it is akin to a transfer, the Federal Election Commission has said in an advisory opinion. [...]

Federal law allows state campaign committees to donate up to $1,000 to a federal race. [...]

In 1996, the FEC said in an advisory opinion that ... transfers of money between state and federal accounts [are] "impermissible."

It also appears to be illegal under state law:

Minn. Stat. ยง10A.27 Subd. 9(b). Contributions to and from other candidates. (b) A candidate's principal campaign committee must not accept a contribution from, or make a contribution to, a committee associated with a person who seeks nomination or election to the office of President, Senator, or Representative in Congress of the United States.

Thus, the runaround. Now, we come to the question of whether this "stealth" campaign literature is legal. From everything I've seen, it appears to be within the letter of the law. Although it is obviously intended to sway Bachmann's constituents to vote for her Congressional bid, state representatives are allowed to communicate with their constituents and count them as "non-campaign disbursements." One legal question would be, is Michele Bachmann still considered a state representative? She has retired from service and is not seeking re-election. Is she still allowed to make these "non-campaign disbursements"?

Possible answers to this question are contained in Minnesota Campaign Finance Board Advisory Opinion 313, which states that mailings to constituents are counted as "non-campaign disbursements," and cites the relevant Minnesota statute:

Subd. 10c. Noncampaign disbursement. "Noncampaign disbursement" means a purchase or payment of money or anything of value made, or an advance of credit incurred, by a political committee, political fund, or principal campaign committee for any of the following purposes: [...] (f) services for a constituent by a member of the legislature or a constitutional officer in the executive branch, performed from the beginning of the term of office to adjournment sine die of the legislature in the election year for the office held, and half the cost of services for a constituent by a member of the legislature or a constitutional officer in the executive branch performed from adjournment sine die to 60 days after adjournment sine die;

The legislature adjourned on May 21st, 2006. That means that this mailing is cutting it close-- depending on when it was mailed. My source received it on Monday, July 24th. The mailing does not contain a date or postmark, and was mailed from St. Paul. Given the recent problem with Keith Ellison's mailing that did not arrive until several days after the event it referred to had passed, it is possible, and even probable, that it was mailed within the 60-day mark. I am not very familiar with Minnesota campaign finance law, but it seems to me that it remains an open question how this mailing would legally work, with Michele Bachmann no longer a candidate for state office.

Another relevant statute would seem to allow this type of mailing for a candidate:

211B.12 Legal expenditures. Use of money collected for political purposes is prohibited unless the use is reasonably related to the conduct of election campaigns, or is a noncampaign disbursement as defined in section 10A.01, subdivision 10c. The following are permitted expenditures when made for political purposes: (1) salaries, wages, and fees; (2) communications, mailing, transportation, and travel; (3) campaign advertising; (4) printing; (5) office and other space and necessary equipment, furnishings, and incidental supplies; (6) charitable contributions of not more than $50 to any charity annually; and (7) other expenses, not included in clauses (1) to (6), that are reasonably related to the conduct of election campaigns. In addition, expenditures made for the purpose of providing information to constituents, whether or not related to the conduct of an election, are permitted expenses.

She's providing (slanted) information to constituents, but, as a retired state senator, is she still allowed to do so? I can find nothing on the question of retirement on the CFB website.

Over at a DB comment thread, MNCR observes that:

Technically, Bachmann still is a State Senator until January of next year, when her replacement is sworn in, so her State Senate office is still hers until then.


If anyone has any insight into this question, or any other possible opinions or statutes to look at, please let me know in the comments or by e-mail.

A second legal question is, would this mailing count as a merely informative service to the constituency, thus a "noncampaign disbursement," or would it count as a disbursement "on behalf of a candidate for federal office"? Minnesota Campaign Finance Board Advisory Opinion 323 states,

A principal campaign committee may not use its funds to make approved or independent expenditures on behalf of a candidate for federal office.

Would a Finance Board hearing determine this mailing to be truly "informational," coming as it does after the candidate has retired and is seeking election to a federal office? Or would it could as an expenditure on behalf of Bachmann's campaign for U.S. Congress, the election on which it is really meant to have an impact?

Eva Young over at DB has thoughtfully posted a nice full-color scan of the document, for those who dislike reading straight text.

Comments

This probably is more detail than you want, but it may help: 2004 election cycle, an Anoka County mailing service with its license and imprint Mpls. rather than St. Paul, got a virtual next day delivery turnaround as routine.

Even on the eve of election, an intentionally timed item hit voters as timed, not the day after elections.

Whether there is any cause to expect St.Paul is slower or less careful than Mpls. is doubtful.

Drop shipment bulk mailing rates are attained if there is a mailing party dropoff at the main office. Once the postal service has custody they truck to the local delivery office [Anoka in my instance], and then route delivery was arranged where the Anoka office either trucked parts to satellite branch delivery points or managed the routes centrally. That part I do not know.

The party tendering the mailing to the postal authorities, and taking advantage of bulk rates, has the duty to fully organize the mailing by zip-code and route; or at least they had to in the past.

Depending on where the mailings are, and ZIP boundaries, some drop shipments may involve multiple zipcodes, and possibly be more problematic. I am aware of that situation existing in a state house district in the past, without incident, because the mailing was properly organized before tender to the postal service.

Each postal office should have one worker in the office primarily responsible for the political drop shipments - receiving and receipting change of custody. Using fewer cooks keeps to the recipe better.

On at least one drop shipment I have seen the responsible postal official hold the dropoff party until together all was reviewed as proper. The receipt should not be issued if the postal service sees any problem that cannot be corrected on the post office shipping dock.

I have been told that postal workers are instructed and learn that political mailings are "red tag" so that they are not lost or misplaced on a mail dock, and delivered late.

CYA for the postal people weighs against lax procedures, where political forces can later complain vocally. It figures.

The bulk mailings must be hand carried to the post office that the imprint-license is with; by the bulk mailing service or other party holding the imprint, and receipts and records should exist within the involved central postal office.

Reciept copies should be in the hands of the mailing entity, although identification of that party, and gaining cooperative responses is not expeditious. There is no law compelling private parties to divulge data.

FOIA, the Freedom of Information Act, entitles citizen right to inspect or copy federal public [non-classified] documents; or be provided copies.

Drop shipment receipts in the central post office fit FOIA disclosure criteria.

Response time on FOIA can vary, with the involved agency's motivation for timely compliance being one of several possible factors that could cause delay.

BOTTOM LINE: There should be receipt-records at the main post office that received the bulk mailing package, St. Paul in this case, showing a date-time timeclock timestamp, indicating precisely when custody of the bulk mailing was accepted by the Postal Service.

Probably a single page form receipt, duly time-stamped, would be the evidence.

That would probably serve as definitive evidence in a court proceeding, if a document is a duly certified copy for court purposes, so someone should be motivated to consider an inquiry.

My guess is the item ID and imprint number is enough for tracking. The post office might even keep one hold-out item copy, to assure unequivocal ID.

There is no indication of multiple late July Bachmann mailings, is there? I see no cause to anticipate any problem in pinning down exactly the date-time of post office acceptance of custody. Then square that with the statute.