To: Commissioners From: Jonathan Wayne, Executive Director Date: November 3, 2016 Re: Request by Maine Democratic Party to Investigate Potential Contribution to Dr

Special Commission Meeting: 11/07/2016 STATE OF MAINE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES 135 STATE HOUSE STATION AUGUSTA, MAINE 04333-0135

To: Commissioners From: Jonathan Wayne, Executive Director Date: November 3, 2016 Re: Request by Maine Democratic Party to Investigate Potential Contribution to Dr. David Edsall

Maine regulates the contributions received by candidates to provide the public with information concerning who is influencing the political process and to minimize any risk of the corrupting influence of large contributions. Traditionally financed candidates for the Maine Legislature may accept no more than $375 from a donor. Candidates who participate in the Maine Clean Election Act program may accept no contributions once they have qualified for public funding. These limits apply to both cash and in-kind contributions (goods or services). Candidates must disclose all contributions received in campaign finance reports submitted to the Commission. In this context, candidates for public office have a responsibility to understand what is – and is not – a contribution.

Like most states, Maine law provides that if a candidate consults or cooperates with another’s spending to promote that candidate, the candidate has received a contribution. As a matter of policy, this has been viewed as a necessary corollary to limiting the amount that a candidate may receive directly from a supporter. If a candidate could legally ask others to spend unlimited amounts on their behalf, it would be easy to evade public disclosure and contribution limits.

This memo is to provide you with some background information and relevant laws concerning the attached request for investigation submitted on November 1, 2016 by the

OFFICE LOCATED AT: 45 MEMORIAL CIRCLE, AUGUSTA, MAINE WEBSITE: WWW.MAINE.GOV/ETHICS PHONE: (207) 287-4179 FAX: (207) 287-6775

Maine Democratic Party (“MDP”) against Dr. David Edsall, a candidate for the Maine House of Representatives in Ellsworth. His name and a photograph of him appeared in two newspaper advertisements and a mailing paid for by another candidate in Ellsworth who is running for municipal office. The MDP claims that Dr. Edsall received a “substantial benefit to his name recognition and promotion of his candidacy ...” from these communications. The MDP contends that if Dr. Edsall cooperated with the expenditures by the other candidate, the costs should be viewed as a contribution to Dr. Edsall, which would be prohibited under the Maine Clean Election Act.1

Background Information

Candidates in House District 132. Dr. David Edsall is challenging the incumbent in House District 132, Representative Louis Luchini. As a Maine Clean Election Act (“MCEA”) candidate, Dr. Edsall was restricted to spending only public campaign funds he received from the State of Maine. He received a basic payment of $5,000 for the general election and qualified for six supplemental payments of $1,250, for a total of $12,500.

Dr. Edsall registered as a candidate with the Commission on June 18, 2016. (He replaced the Republican nominee who withdrew from the general election ballot.) In this matter, he will be represented by the law firm of Preti Flaherty. He is expected to provide a written response tomorrow.

John Linnehan. The two advertisements and mailer were paid for by John Linnehan. He is an Ellsworth business person who is running for City Council in his municipality. In March 2016, he qualified for the primary election ballot as a candidate for House District

1As an alternative, the MDP urges the Commission to consider whether Mr. Linnehan failed to submit independent expenditure reports of his communications (which may have been required if there were no cooperation or consultation between Mr. Linnehan and Dr. Edsall on the expenditures). Since it appears that Dr. Edsall did have some awareness of Mr. Linnehan’s communications in advance, I have given this concern shorter treatment in this memo. The statute governing independent expenditures is attached, for your reference.

132. He formally withdrew on July 5, 2016 and was replaced on the general election ballot by David Edsall.

Because Mr. Linnehan is running for City Council in Ellsworth, he is not required to register or file campaign finance reports with this office. He has agreed to be available by telephone Monday morning, in case you have questions for him.

Three communications at issue (1) Mr. Linnehan purchased an advertisement in the October 20, 2016 edition of the Ellsworth American (a weekly newspaper) at a cost of $1,161.60. The advertisement takes up approximately one-quarter page. The ad explains that he is running for City Council to lower property taxes. It invites the public to a “meet and greet” event at the Ellsworth City Hall on October 21.

In the bottom quarter of the ad, Mr. Linnehan included a photo of him and David Edsall. In the photo, Dr. Edsall is wearing a campaign t-shirt stating “Doctor David Edsall/State Representative/Ellsworth.” The ad also contains a quotation from Dr. Edsall to “Vote for John” and support his tax plan, and attributes the quote to “Dave Edsall.”

(2) Mr. Linnehan purchased a second ad that was published on October 27, 2016. The cost was $393.30. The second ad was similar to the first, except that the second ad did not include information about the meet and greet event. The second ad contained the same photo of the two candidates and quoted Dr. Edsall by name.

(3) Mr. Linnehan paid for a mailing of a postcard inviting the public to the meet and greet event on October 21. The photograph of the two candidates and Dr. Edsall’s name and quotation appear on both sides of the postcard. Mr. Linnehan disclosed to me that it was sent on October 18, 2016 to every address in Ellsworth (4,114 addresses) at a cost of $1,379.85.

Written guidance on coordinated expenditures. When asked, the Commission staff advises candidates and other spenders that they should not consult or cooperate with each other on spending to promote the candidate. This advice is contained in various written materials that are sent to all candidates. Pages from those guidance documents are attached.

Previous Commission advice on endorsements. The Ethics Commission staff sometimes receives questions concerning whether one candidate may publicly endorse another candidate in a communication paid for by the endorsed candidate. At a meeting on May 27, 2010, the Commissioners authorized the Commission staff to provide the following advice:

Campaign materials paid for one candidate which contains an endorsement by another candidate generally are not contributions to the endorsing candidate, provided that the communication • does not mention the candidacy of the endorsing candidate, and • contains no promotional or supportive statements concerning the endorsing candidate. The endorsed candidate generally may use Maine Clean Election Act funds for such campaign materials.

If the Commission is asked to consider whether an endorsed candidate has provided an in-kind contribution to the endorsing candidate or inappropriately used MCEA funds to promote the endorsing candidate, the Commission will look at each communication on a case-by-case basis.

We have followed this policy in advice situations in the past four election cycles.

Explanation by Dr. Edsall. When I telephoned Dr. Edsall to notify him of the MDP filing (prior to his obtaining legal counsel), he acknowledged that Mr. Linnehan had contacted him seeking some statement endorsing his tax plan. He also said that he had

sought advice from a Commission employee, Assistant Director Paul Lavin. The candidate is expected to submit a written response later today or tomorrow morning with the assistance of counsel.

Scheduling In the last 28 days before an election, the Commission is required to meet quickly to consider requests for investigation. With the consent of the MDP and Dr. Edsall, I scheduled this matter for November 7, 2016. On November 1, I wrote a short letter to the candidate (attached) requesting some factual information by noon tomorrow. Regardless how you wish to handle this request for investigation, please keep in mind that Dr. Edsall only had a couple of business days to provide a written response. If you are contemplating any negative action, you may wish to consider whether to wait until the December 8, 2016 meeting of the Commission to provide him with additional opportunity to provide relevant factual information or legal argument.

Remedying an Impermissible Contribution If you are inclined toward the view that Dr. Edsall has received an in-kind contribution that is incompatible with his participation in the MCEA program, you may wish to inquire whether he would voluntarily reimburse John Linnehan with MCEA funds for a portion of the cost of the communications.

Relevant Law Some Maine statutes and Commission Rules that are relevant to this matter are included in the packet that accompanies this memo.

Restriction against accepting contributions Candidates must report all cash and in-kind contributions received. (21-A M.R.S.A. § 1017(5)) After qualifying to receive public campaign funds, candidates such as Dr. Edsall who are participating in the Maine Clean Election Act program may not accept cash or in-kind campaign contributions. (21-A M.R.S.A. § 1125(6))

Consulting with or cooperating with others on spending If a candidate has suggested or requested that someone make an expenditure to promote their election or has consulted on such an expenditure, the expenditure constitutes a contribution to the candidate. It is also a contribution to distribute or republish the candidate’s campaign materials. Any expenditure made by any person in cooperation, consultation or concert with, or at the request or suggestion of a candidate, a candidate’s political committee or their agents is considered to be a contribution to that candidate. The financing by any person of the dissemination, distribution or republication, in whole or in part, of any broadcast or any written or other campaign materials prepared by the candidate, the candidate's political committee or committees or their authorized agents is considered to be a contribution to that candidate. (21-A M.R.S.A. § 1015(5))

Shared expenditures Sometimes, multiple candidates purchase a mailing or advertisement jointly that will promote all of the candidates. The Commission’s Rules state that the joint expenditure does not constitute an in-kind contribution to any of the candidates, as long as the cost is allocated among the candidates in proportion to the benefit received by each candidate. (Chapter 1, Section 7(11))

Independent expenditure reporting PACs, political parties and others are required to report “independent expenditures,” which are expenditures made for communications advocating for or against candidates. After Labor Day, communications that name or depict a clearly identified candidate are presumed to involve independent expenditures. (21-A M.R.S.A. § 1019-B) Independent expenditure reporting is for the costs of designing, producing or disseminating communications, such as literature or advertisements.

Thank you for your consideration of this item on short notice.

November 4, 2016

VIA EMAIL

Jonathan Wayne, Esq. Commission on Governmental Ethics & Election 135 State House Station Augusta, ME 04333-0135

RE: Maine Democratic Party Request for Investigation of Linnehan Advertisement and Mailer

Dear Mr. Wayne,

On behalf of Dr. David Edsall, we appreciate the opportunity to provide information in response to the Maine Democratic Party’s request for investigation into John Linnehan’s campaign advertisement and mailer.

The issue raised by the Democratic Party’s complaint is whether John Linnehan’s advertisement and mailer to support his Ellsworth City Council run constitute an in-kind contribution to Dr. David Edsall’s campaign for the Maine House of Representatives. We respectfully suggest they do not. In order for the advertisement and mailer to constitute in-kind contributions to Dr. Edsall, they had to have been made for the purpose of influencing Dr. Edsall’s election. See 21-A M.R.S.A. § 1012(2)(A)(1). Mr. Linnehan’s advertisement and mailer were not sent out to influence the election of Dr. Edsall—they were to support the candidacy of Mr. Linnehan, who paid for them and who is featured in them.

We expect the upcoming Commission meeting will reveal the following. At some point in the fall, Mr. Linnehan asked Dr. Edsall whether he would be willing to endorse Mr. Linnehan’s run for Ellsworth City Council, and Dr. Edsall said he would consider it after speaking with the Ethics Commission staff. At some point in October, he called the Commission and spoke with Deputy Director Paul Lavin. Dr. Edsall recalls that during this conversation, he asked Mr. Lavin if he could endorse Mr. Linnehan in a campaign communication of Mr. Linnehan’s. His understanding after speaking with Mr. Lavin was that as long as Mr. Linnehan’s campaign communication was not substantially instead about Dr. Edsall’s campaign, he could do the endorsement.

Consequently, Dr. Edsall agreed to endorse Mr. Linnehan’s tax plan in the campaign literature. Dr. Edsall told Mr. Linnehan that he would not agree for the quote to come from him as a candidate, which is why the quote in the resulting campaign literature only refers to him as “Dave Edsall.”

11152420.1 PRETI FLAHERTY Jonathan Wayne, Esq. November 4, 2016 Page 2

At no time did Dr. Edsall and Mr. Linnehan discuss trying to help Dr. Edsall’s campaign through this advertisement and mailer—there was no suggestion, there was no request. The purpose of the mailer and advertisement was to support Mr. Linnehan’s candidacy for City Council, and the content reflects that desire. The advertised meet and greet session on October 21 was for John Linnehan, not Dave Edsall. The website listed on the campaign literature was John Linnehan’s, not Dave Edsall’s. The request, “Please vote for me November 8th,” was about John Linnehan, not Dave Edsall. The Maine Democratic Party alleges that John Linnehan wore an “Edsall” shirt in the photo in the literature, which they believe conclusively indicates that John Linnehan spent money on this campaign literature to support Dr. Edsall. It is not John Linnehan wearing the “Edsall” shirt; it is Dr. Edsall.

Although the photo in the campaign literature includes “Edsall” on his shirt, the remaining language on his shirt is unnoticeable or even unreadable due to newspaper print quality and lettering size. Even those who have had reason to scrutinize the photos as a result of this request for investigation have not been able to determine what his shirt said. The Maine Democratic Party, in its November 1 letter to the Commission, quoted it as saying, “Edsall for State Representative,” which is inaccurate. The November 3 memorandum to the Commission from Mr. Wayne quoted the shirt as saying, “Doctor David Edsall/State Representative/Ellsworth,” which also is inaccurate. Neither of these mistakes is surprising given the size and/or lack of clarity of the lettering in the small photo. It simply is difficult to read.

When it comes to campaign literature, font size matters. For example, when a financed political communication clearly depicting a candidate is made, and is not authorized by that candidate, the funder of the communication is required to state in no smaller than 12-point bold Times New Roman font the words, “NOT PAID FOR OR AUTHORIZED BY ANY CANDIDATE.” See 21-A M.R.S.A. § 1014(2). The inherent assumption is that small text goes unnoticed by voters who choose to read campaign literature. The present situation is no different. The final product, the campaign literature, simply does not reflect a purposeful attempt to influence Dr. Edsall’s campaign.

Dr. Edsall is a well-known physician, and has knocked on thousands of doors since early July, when he began his campaign. His Facebook page posts receive thousands of hits. He has sent out mailers to 5000 households in his district, and followed up with 500 personal letters to voters in his district. He has written postcards to every single door he has knocked on, and to half of those households he’s sent two postcards. He does not need help with name recognition. There would have been no reason to try to get John Linnehan to influence his campaign—the prospective benefit was nonexistent.

In this case, a first-time candidate, Dr. Edsall, proactively contacted the Ethics Commission out of concern for endorsing a municipal candidate in a correct and ethical fashion. He did his best to comply with Mr. Lavin’s advice, and told Mr. Linnehan that he should limit the name on his endorsement to “Dave Edsall.” When Dr. Edsall reviewed the campaign literature, he felt he had complied with Mr. Lavin’s advice—he did not feel that it was about his candidacy; he felt, as one would glean from the literature, that it was about John Linnehan

11152420.1 PRETI FLAHERTY Jonathan Wayne, Esq. November 4, 2016 Page 3 running for City Council. Both Dr. Edsall and Mr. Linnehan will tell you that this was, in no way, an attempt to circumvent Maine’s campaign laws.

In summary, neither Dr. Edsall nor Mr. Linnehan intended for this campaign literature to influence Dr. Edsall’s campaign. Any support lent to Dr. Edsall’s campaign by the advertisement and mailer, to the extent it exists, which is doubtful, was completely unintentional.

We appreciate the Commission’s consideration of Dr. Edsall’s submission, and we look forward to the meeting on Monday, November 7.

Very truly yours,

/s/ Timothy J. Bryant

Timothy J. Bryant TJB:lpw cc: Dr. David Edsall (via email) Holly E. Lusk, Esq. Kate Knox, Esq.

11152420.1

MARCH 2016 COMMISSION ON GOVERNMENTAL ETHICS & ELECTION PRACTICES 135 STATE HOUSE STATION AUGUSTA, MAINE 04333 2016 Candidate Guidebook Running for Office in Maine Maine Clean Election Act Legislative Candidates Candidates Legislative GOODS & SERVICES NOT CONSIDERED CONTRIBUTIONS  recruit and oversee volunteers for campaign activities involving 3 or more Certain goods and services are excluded from the legal candidates; and definition of “contribution.” A campaign’s receipt of these goods and services is not an in-kind contribution.  coordinate campaign events involving 3 or more candidates. Candidates and treasurers are encouraged to familiarize themselves with these exempt goods and This exception applies only to state party committees services listed in the Appendix of this Guidebook. (Democratic, Green-Independent, and Republican), Some examples of exempt goods and services are and does not apply to local party committees, caucus described in the following sub-sections. committees, or PACs.

Donated Office Space and Use of Equipment. A Party Committee Slate Cards. State, county, and trade association, commercial business, labor union, local party committees may spend money to produce business owner, etc., may donate office space or office and distribute a slate card (“party candidate listing”) to equipment to a campaign, provided there are no promote 3 or more candidates. This exception is not additional costs, such as telephone and utilities. If available to caucus committees and PACs. there are additional costs the campaign is required to Volunteer Services vs. Paid Assistance. Individuals pay for those costs. are permitted to provide their services — including

“House Parties.” Each volunteer or supporter may professional services such as legal advice, assistance spend up to $250 in each election (primary or general) with databases, and web and graphic design — for free towards the cost of food, beverages, and invitations in to a campaign as volunteers. A candidate may provide the course of volunteering for a campaign. For compensation to a volunteer for a portion of the example, when volunteering to put on a house party or volunteer’s time spent on campaign activities. a campaign event, a campaign supporter may spend However, if an individual provides his or her services to up to $250 for food and another supporter may spend a campaign at the direction of his or her employer up to $250 for beverages. during his or her paid work-time, then the employer has made an in-kind contribution to the campaign. Assistance from State Party Committees. AVOID COORDINATING EXPENDITURES WITH THIRD- Candidates may receive some assistance from paid PARTIES employees of a state party committee without that help constituting an in-kind contribution. State party Coordinated Expenditures. Individuals (including committees may: friends and family) and organizations have a First Amendment right to spend money to promote the  provide up to 40 hours of assistance by election of a candidate. To avoid making an in-kind paid employees to a candidate in each contribution to the candidate, however, they must make election (primary or general);

Page 30 2016 MCEA Candidate Guidebook the expenditures independently of the candidate and membership communications, etc.), the candidate may the candidate’s campaign. receive an impermissible in-kind contribution and may be required to reimburse the spender for the amount of The Election Law states that: the expenditure. “Any expenditure made by any person in cooperation, consultation or concert with, or at Requesting Third-Parties Not to Make the request or suggestion of, a candidate, a Expenditures. Candidates are allowed to ask third- candidate's political committee or their agents is parties not to spend money in support of their considered to be a contribution to that candidacies. Even if the third-party were to spend candidate.” (21-A M.R.S.A. § 1015(5)) money subsequently, merely making a request of the If any person or organization makes an expenditure to third-party to not make an expenditure would not support a candidate and has cooperated or consulted constitute cooperation. with that candidate or an agent of the candidate on the APPEARING IN ADVERTISING SPONSORED BY THIRD- expenditure, the candidate has received an in-kind PARTIES contribution. Prior to certification, an MCEA candidate may only accept contributions, including in-kind In 2008, the Commission considered an advertisement contributions, of $100 or less from individuals. After concerning federal issues of public policy in which a certification as an MCEA candidate, the candidate may candidate for state office appeared. The advertisement not accept any type of contribution. If the expenditure portrayed the candidate in a positive light, but did not was coordinated, the candidate will have to reimburse mention his candidacy. In that instance, the the spender for all or a portion of the expenditure. Commission applied the legal definition of “contribution” and determined that the candidate’s Candidates should always exercise caution when involvement in the advertisement did not constitute a communicating with third parties about spending contribution to the candidate’s campaign. money on campaign communications. The best practice is for the candidate to avoid any discussion However, if an individual or organization invites a with anyone who intends to spend money on candidate to appear in a paid advertisement, the value communications to support his or her candidacy. The of the advertising could be considered a contribution to Commission staff also recommends that candidates his or her campaign, which is not permitted. A urge their treasurer, deputy treasurer, campaign candidate may wish to contact the Commission staff to committee chair or officers, campaign manager, and receive advice on what factors the Commission might other paid or unpaid individuals who hold positions of consider in determining whether an advertisement responsibility in the campaign to avoid cooperating or would be a contribution. consulting with anyone on expenditures or CONTRIBUTIONS FOR RECOUNTS communications to promote the candidate. Unless a If a candidate is in a recount of an election, he or she coordinated expenditure falls into one of the exceptions may not use MCEA funds for the recount. The established by the Legislature (e.g., slate cards,

CHAPTER 7 Page 31 Commission on Governmental Ethics and Election Practices September 14, 2016 Located at 45 Memorial Circle, Augusta, Maine 04330 (207) 287-4179 | Website: www.maine.gov/ethics

42-DAY PRE-GENERAL REPORT FILING REMINDER FOR MCEA CANDIDATES Campaign Finance Report Due September 27, 2016

REPORT DEADLINE REPORT PERIOD Inside this issue: 42-Day Pre-General Report Tuesday, September 27, 2016 July 20 through Sept 20, 2016 Independent 2 by 11:59 p.m. Expenditures

REMEMBER: Make all reimbursements on or by September 20, 2016, the last day Payments to Family 2 of the report period. and Household

All MCEA candidates are required to file campaign finance reports electronically using the Accepting Free 2 Commission’s e-filing system, except candidates who submitted an e-filing waiver and are Professional Services filing on paper forms.* Travel Reimbursements 2 To log into the E-Filing system: Treasurer’s Tips:  Go to the Commission’s e-filing website: www.mainecampaignfinance.com. Reporting  Click the blue “Filer Login” button. 3 Reimbursements  Enter your user name and password. If you have any problems logging in, please contact the Commission as soon as possible before the filing deadline. Using the Correct 3 Expenditure Type  Only Treasurers are allowed to file the completed financial report; MCEA candidates cannot file the report. NEW RULE ON THE HOUSE PARTY EXCEPTION What is the house party exception?

Campaign finance law exempts certain types of donations or expenses from the definitions of contribution and expenditure. One of those exceptions is the “house party” exception. This exception allows individuals to spend up to $250 per election per candidate on food, beverages and invitations for a campaign event to support the candidate. Those expenses will not be considered a contribution to the candidate. The Commission has recently adopted a new rule that clarifies who can use the house party exception and how it works. Who can use the house party exception?

Only individuals who are actively participating at the house party or providing the real property where the party will be held can use the exception. This means that the exception does not apply to someone who simply writes a check to pay for food, beverages and invitations. What expenses does the house party exception apply to?

The exception applies to the cost of food and beverages for the house party. An individual who is actively participating at the house party may spend up to $250 on food and beverages. The cost of the invitations to the house party can be paid only by a single individual who is providing the real property. For example, if 3 individuals decide to put on a house party to support a candidate and the total cost of food and beverages will be $200 and the cost of printing and sending out invitations will be $75, two individuals can split the cost of the food and beverages and pay $100 each; but the $75 for the invitations can be paid only by the individual at whose house the party will be held.

* For candidates filing on paper, the Commission’s fax machine operates 24 hours a day. However, staff will be available only until 5:00 p.m. on 9/27/2016 to confirm receipt of a faxed report and to offer assistance and answer questions about filing reports. Page 2 FAQs FROM THE 2016 CANDIDATE GUIDEBOOK: What is an Independent Expenditure? Avoid Coordinating Expenditures with An expenditure by a third-party (such as a party committee, PAC, or individual) is Third-Parties ~ Pages 30-31 considered independent of your campaign if it is not made in cooperation or If a third-party has consulted with an consultation with the campaign. However, if you discuss the timing or content of a MCEA candidate concerning an mailing promoting your campaign that will be paid by a PAC, for instance, the PAC’s expenditure, the candidate has received an in-kind contribution, which expenditure is not independent of your campaign. Because of that consultation, the is a violation of the MCEA. It is expenditure would be considered an in-kind contribution from the PAC to your important for an MCEA candidate to campaign. There are certain exceptions, such as slate cards paid for by a party understand the definition of committee. “independent expenditure.” Can I Pay a Family or Household Member? Generally, a campaign may not use MCEA funds to buy goods or services from a member of the candidate’s immediate family or household, or from certain businesses or non-profit organizations affiliated with them. There is a limited exception if the family or household member normally provides those goods/services in the course of their occupation or business and if other conditions are met. For more information on this restriction, please call the Commission staff or look for the policy on paying campaign funds to family members at: www.maine.gov/ethics/candidates/forms/legis-mcea.htm

Can I Accept Free Professional Services? Yes, an individual may donate their services to your campaign as a volunteer as long as no one (such as an employer or political action committee) is paying or compensating them to provide the services. When an individual volunteers to donate FROM THE 2016 CANDIDATE GUIDEBOOK: their services to your campaign, it is not an in-kind contribution. However, if the How to Report Interest ~ Pages 45-46 individual is being paid or compensated for providing the services (such as by their MCEA candidates are permitted to employer or political action committee), your campaign must pay the employer or earn interest on campaign funds in bank accounts and to spend that inter- committee for the services to avoid receiving an in-kind contribution. est for campaign purposes. The total amount of interest for the entire reporting period should be entered as an Travel Reimbursements - What are the Reporting & unitemized contribution, with a note in the remarks section that the entry is Record-keeping Requirements? for ‘interest earned.’ If your campaign is reimbursing anyone for their travel expenses, the person receiving the reimbursement must keep a contemporaneous log of their travel containing the: (1) date of travel; (2) number of miles traveled; (3) the origination (if different from the COMMISSION PHONE NUMBERS residence of the person reimbursed); (4) destination; (5) specific campaign purpose; Candidate Registrars Are Always (6) total dollar amount claimed for the reimbursement; and (7) an affirmation Available to Help You statement by the person reimbursed that the log is an accurate record. See pages 37 & 48 and the sample log on page A6 of the 2016 Candidate Guidebook for more Emma Burke 207-287-4727 information. Erin Gordon 207-287-3651 PLEASE REMEMBER: Paul Lavin 207-287-3024 MCEA candidates can enter transactions into the e-filing system but cannot Main Line 207-287-4179 file the report. The report must be filed by the treasurer or deputy treasurer. 2016 Candidate Quick Guide

Maine Clean Election Act Legislative Candidates

Maine Commission on Governmental Ethics and Election Practices 135 State House Station, Augusta, ME 04333 (207) 287-4179 | [email protected] BEST PRACTICES & FAQs

 Candidates must be registered with the Commission, and have submitted a signed Declaration of Intent, before collecting qualifying contributions.

 Candidates must open and use a separate bank account to deposit seed money and MCEA funds and to make all campaign-related expenditures. The account should be a checking account with a debit card, if possible.

 After qualifying for MCEA funds, candidates may not accept cash or in-kind contributions. Candidates should educate themselves on what constitutes an in-kind contribution.

 Candidates may only use MCEA funds for campaign-related expenditures that are allowed under the Commission’s 2016 Expenditure Guidelines (included in the packet).

 Candidates should be aware that they are spending public funds on their campaign. Purchases that appear frivolous or for personal gain can damage a candidate’s reputation.

 Expenditures greater than $50 should never be paid for with cash.

 Receipts and invoices must be kept for all expenditures over $50.

 Candidates should avoid having to make reimbursements by making all expenditures directly from the campaign bank account.

 Candidates must not request or suggest that others spend money to promote their election, and must not consult or cooperate with anyone making expenditures to promote their election. Please contact a Candidate Registrar for more information.

 Generally, candidates may not use MCEA funds to pay a member of the candidate’s immediate family or household, although there is a limited exception under the Election Law. Please refer to the Candidate Guidebook for more information.

 If a campaign purchases property or equipment worth $50 or more that could be converted to personal use after the election, the campaign must sell the item at fair market value and return the proceeds to the Commission. If the candidate, a family member or campaign staff buys the item, they must buy the item for no less than 75% of the original purchase price.

Maine Revised Statutes Title 21-A: ELECTIONS Chapter 13: CAMPAIGN REPORTS AND FINANCES

§1003. INVESTIGATIONS BY COMMISSION 1. Investigations. The commission may undertake audits and investigations to determine whether a person has violated this chapter, chapter 14 or the rules of the commission. For this purpose, the commission may subpoena witnesses and records whether located within or without the State and take evidence under oath. A person or entity that fails to obey the lawful subpoena of the commission or to testify before it under oath must be punished by the Superior Court for contempt upon application by the Attorney General on behalf of the commission. The Attorney General may apply on behalf of the commission to the Superior Court or to a court of another state to enforce compliance with a subpoena issued to a nonresident person. Service of any subpoena issued by the commission may be accomplished by: A. Delivering a duly executed copy of the notice to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of that person; [2013, c. 162, §1 (NEW).] B. Delivering a duly executed copy of the notice to the principal place of business in this State of the person to be served; or [2013, c. 162, §1 (NEW).] C. Mailing by registered or certified mail a duly executed copy of the notice, addressed to the person to be served, to the person's principal place of business. [2013, c. 162, §1 (NEW).]

[ 2013, c. 162, §1 (AMD) .] 2. Investigations requested. A person may apply in writing to the commission requesting an investigation as described in subsection 1. The commission shall review the application and shall make the investigation if the reasons stated for the request show sufficient grounds for believing that a violation may have occurred.

[ 2011, c. 389, §4 (AMD) .] §1012. DEFINITIONS ∴ As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings. [1985, c. 161, §6 (NEW).] 2. Contribution. The term "contribution:" A. Includes: (1) A gift, subscription, loan, advance or deposit of money or anything of value made for the purpose of influencing the nomination or election of any person to state, county or municipal office or for the purpose of liquidating any campaign deficit of a candidate, except that a loan of money to a candidate by a financial institution in this State made in accordance with applicable banking laws and regulations and in the ordinary course of business is not included;

Generated 12.10.2015 | 1 MRS Title 21-A §1003. INVESTIGATIONS BY COMMISSION

§1015. LIMITATIONS ON CONTRIBUTIONS AND EXPENDITURES ∴

5. Other contributions and expenditures. Any expenditure made by any person in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate's political committee or their agents is considered to be a contribution to that candidate. The financing by any person of the dissemination, distribution or republication, in whole or in part, of any broadcast or any written or other campaign materials prepared by the candidate, the candidate's political committee or committees or their authorized agents is considered to be a contribution to that candidate.

[ 1989, c. 504, §§7, 31 (AMD) .]

§1019-B. REPORTS OF INDEPENDENT EXPENDITURES 1. Independent expenditures; definition. For the purposes of this section, an "independent expenditure": A. Is any expenditure made by a person, party committee, political committee or political action committee, other than by contribution to a candidate or a candidate's authorized political committee, for any communication that expressly advocates the election or defeat of a clearly identified candidate; and [2003, c. 448, §3 (NEW).] B. Is presumed to be any expenditure made to design, produce or disseminate a communication that names or depicts a clearly identified candidate and is disseminated during the 21 days, including election day, before a primary election; or the 35 days, including election day, before a general or special election. [2013, c. 334, §15 (AMD).] [ 2013, c. 334, §15 (AMD) .] 2. Rebutting presumption. A person presumed under this section to have made an independent expenditure may rebut the presumption by filing a signed written statement with the commission within 48 hours of making the expenditure stating that the cost was not incurred with the intent to influence the nomination, election or defeat of a candidate, supported by any additional evidence the person chooses to submit. The commission may gather any additional evidence it deems relevant and material and must determine by a preponderance of the evidence whether the cost was incurred with intent to influence the nomination, election or defeat of a candidate. [ 2003, c. 448, §3 (NEW) .] 3. Report required; content; rules. [ 2009, c. 524, §6 (RPR); T. 21-A, §1019-B, sub-§3 (RP) .] 4. Report required; content; rules. A person, party committee, political committee or political action committee that makes any independent expenditure in excess of $250 during any one candidate's election shall file a report with the commission. In the case of a municipal election, the report must be filed with the municipal clerk.

Generated | 2 12.10.2015 MRS Title 21-A §1003. INVESTIGATIONS BY COMMISSION

A. A report required by this subsection must be filed with the commission according to a reporting schedule that the commission shall establish by rule that takes into consideration existing campaign finance reporting requirements. Rules adopted pursuant to this paragraph are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A. [2011, c. 558, §2 (AMD).] B. A report required by this subsection must contain an itemized account of each expenditure in excess of $250 in any one candidate's election, the date and purpose of each expenditure and the name of each payee or creditor. The report must state whether the expenditure is in support of or in opposition to the candidate and must include, under penalty of perjury, as provided in Title 17-A, section 451, a statement under oath or affirmation whether the expenditure is made in cooperation, consultation or concert with, or at the request or suggestion of, the candidate or an authorized committee or agent of the candidate. [2015, c. 350, §6 (AMD).] C. A report required by this subsection must be on a form prescribed and prepared by the commission. A person filing this report may use additional pages if necessary, but the pages must be the same size as the pages of the form. The commission may adopt procedures requiring the electronic filing of an independent expenditure report, as long as the commission receives the statement made under oath or affirmation set out in paragraph B by the filing deadline and the commission adopts an exception for persons who lack access to the required technology or the technological ability to file reports electronically. The commission may adopt procedures allowing for the signed statement to be provisionally filed by facsimile or electronic mail, as long as the report is not considered complete without the filing of the original signed statement. [2013, c. 334, §16 (AMD).] This subsection takes effect August 1, 2011. [ 2015, c. 350, §6 (AMD) .] 5. Exclusions. An independent expenditure does not include: A. An expenditure made by a person in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate's political committee or their agents; [2011, c. 389, §21 (NEW).] B. A telephone survey that meets generally accepted standards for polling research and that is not conducted for the purpose of changing the voting position of the call recipients or discouraging them from voting; [2011, c. 389, §21 (NEW).] C. A telephone call naming a clearly identified candidate that identifies an individual's position on a candidate, ballot question or political party for the purpose of encouraging the individual to vote, as long as the call contains no advocacy for or against any candidate; and [2011, c. 389, §21 (NEW).] D. A voter guide that consists primarily of candidates' responses to surveys and questionnaires and that contains no advocacy for or against any candidate. [2011, c. 389, §21 (NEW).] [ 2011, c. 389, §21 (NEW) .] SECTION HISTORY 2003, c. 448, §3 (NEW). 2007, c. 443, Pt. A, §20 (AMD). 2009, c. 366, §5 (AMD). 2009, c. 366, §12 (AFF). 2009, c. 524, §§6, 7 (AMD). 2011, c. 389, §§20, 21 (AMD). 2011, c. 389, §62 (AFF). 2011, c. 558, §2 (AMD). 2013, c. 334, §§15, 16 (AMD). 2015, c. 350, §6 (AMD).

Generated 12.10.2015 | 3 MRS Title 21-A §1003. INVESTIGATIONS BY COMMISSION

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Generated | 4 12.10.2015 94-270 COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES

Chapter 1: PROCEDURES

SUMMARY: This Chapter describes the nature and operation of the Commission, and establishes procedures by which the Commission’s actions will be governed.

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SECTION 4. INITIATION OF PROCEEDINGS

2. Election Campaign Reporting and Maine Clean Election Act Violations

C. Any person (as defined in 21-A M.R.S.A. §1001) may make an official complaint or request for a Commission investigation by filing a signed written request at the Commission's office, setting forth such facts with sufficient details as are necessary to specify the alleged violation. A copy of the signed request may be filed by facsimile or by electronic mail, provided that the original signed request is submitted to the Commission. Statements should be made upon personal knowledge. Statements which are not based upon personal knowledge must identify the source of the information which is the basis for the request, so that respondents and Commission staff may adequately respond to the request. A copy of any such written request will be promptly mailed to the candidate or organization alleged to have violated the statutory requirements. The Director may conduct preliminary fact finding to prepare a matter for presentation to the Commission. The Director, in consultation with Counsel, will prepare a summary of staff findings and recommendations for inclusion on the agenda.

D. An oral report of a violation, or a written request containing insufficient detail to specify the violation charged, does not constitute an official request for a Commission determination, and a person registering such a complaint will be so notified.

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SECTION 5. FACT FINDING AND INVESTIGATIONS

1. Before Commission Meeting. With respect to any inquiry, complaint, or request for Commission action properly filed in accordance with the preceding section, or any potential violation that comes to the attention of Commission staff through an audit or review of reports, the Director may conduct such preliminary investigation as is deemed prudent and desirable. If the preliminary investigation suggests that a complaint is without factual basis, the Director may inquire with the person filing the complaint whether he wishes to withdraw the request for further investigation. When a matter is ready for presentation to the Commission, the Director, in consultation with Counsel, will prepare a summary of findings and recommendations for inclusion on the agenda. 94-270 Chapter 1 page 2

2. By the Commission. Once any matter is reached on the agenda of a Commission meeting, the Commission will control any further investigation or proceedings. No hearings will be held except by direction of the Commission. On a case-by-case basis, the Commission may authorize its Chair, Director, or any ad hoc committee of its members, to conduct further investigative proceedings on behalf of the Commission between Commission meetings. Any authorization so conferred will be fully reflected in the minutes of the Commission meeting. Consultations between the Commission and its Counsel concerning an investigation (including the issuance of subpoenas) where premature public knowledge of the investigation would place the Commission or another investigatory office at a substantial disadvantage may be held in executive session pursuant to 1 M.R.S.A. §§ 405(6)(E), 1005, and 1013(3-A).

3. Use of Commission’s Subpoena Power. The Chair is authorized to issue subpoenas in the name of the Commission to compel the attendance of witnesses or the production of records, documents or other evidence when the Chair and the Commission's Counsel are in agreement that the testimony or evidence sought by the subpoena is necessary to disposition of the matter; and to issue any subpoena in the name of the Commission on behalf of any person having a statutory right to an agency subpoena. Any oral testimony compelled by a subpoena issued by this provision will be presented to the Commission or its staff.

4. Hearings. The Commission may hold a hearing to receive testimony under oath. Any hearing must be conducted in accordance with the Maine Administrative Procedure Act [5 M.R.S.A. §§ 8001 et seq.] and Chapter 2 of the Commission’s Rules.

SECTION 6. CONTRIBUTIONS AND OTHER RECEIPTS …

9. If an expenditure is made to promote or support the nomination or election of a candidate, or to oppose or defeat the candidate’s opponent(s), and the expenditure is made in cooperation, consultation or concert with, or at the request or suggestion of, the candidate, the expenditure is considered to be a contribution from the spender to the candidate. As used within this subsection, the term “candidate” includes a committee authorized by the candidate to promote or support his or her election, and all agents of the candidate or the authorized committee.

A. In cooperation, consultation or in concert with includes, but is not limited to:

1. Discussion between the candidate and the creator, producer or distributor of a communication, or the person paying for that communication, regarding the content, timing, location, mode, intended audience, volume of distribution or frequency of placement of that communication, and

2. Participation by the candidate in making any decision regarding the content, timing, location, mode, intended audience, volume of distribution, or frequency of placement of the communication.

B. An expenditure is presumed to be made in cooperation, consultation or concert with, or at the request or suggestion of a candidate, when

1. the expenditure is made in cooperation, consultation or in concert with any person who, during the twelve months preceding the expenditure, 94-270 Chapter 1 page 3

has been the candidate’s treasurer or an officer of the candidate’s authorized committee, has had a paid or unpaid position managing the candidate’s campaign, or has received any campaign-related compensation or reimbursement from the candidate;

2. when the candidate has directly shared the candidate’s campaign plans, activities, or needs with the spender for the purpose of facilitating a payment by the spender on a communication to voters to promote or support the candidate; or

3. the communication replicates, reproduces, republishes or disseminates, in whole or in substantial part, a communication designed, produced, paid for or distributed by the candidate. The candidate or spender may rebut the presumption by submitting sufficient contrary evidence.

C. If a candidate requests that a party committee, political action committee, or other potential spender not make any expenditure to promote or support the candidate, or oppose or defeat the candidate’s opponent(s), the request does not constitute cooperation or coordination.

D. An expenditure will not be presumed to have been made in cooperation, consultation or concert with, or at the request or suggestion of a candidate, solely because:

1. the spender has obtained a photograph, biography, position paper, press release, logo, or similar material about the candidate from a publicly available source;

2. the person making the expenditure has previously provided advice to the candidate on suggested communication strategies, budgets, issues of public policy, or other campaign plans or activities;

3. the person makes an expenditure in response to a general, non-specific request for support by a candidate, provided that there is no discussion, cooperation or consultation with the candidate prior to the expenditure relating to the details of the expenditure;

4. the spender has also made a contribution to the candidate, or has discussed with the candidate his or her campaign plans or activities as part of the candidate’s solicitation for a donation;

5. the expenditure is made by a for-profit or non-profit organization for invitations, announcements, food and beverages and similar costs associated with an event to which the candidate has been invited by the organization to make an appearance before the organization’s members, employees, shareholders and the families thereof; or

6. the expenditure is made by an individual who spends $100 or less for costs associated with a sign that is lettered or printed individually by hand and that reproduces or replicates a candidate’s campaign-related design or graphic. 94-270 Chapter 1 page 4

SECTION 7. EXPENDITURES

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11. Shared Expenditures by Candidates. When two or more candidates have jointly purchased a communication to voters or another good or service, a candidate will not be considered to have received an in-kind contribution if the cost is allocated among the candidates in proportion to the benefit received by each candidate.