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Leffingwell, McCracken clash over cash from outside Austin

Monday, May 4, 2009 by Austin Monitor

Campaign spokesmen for mayoral opponents Lee Leffingwell and Brewster McCracken engaged in verbal fisticuffs Sunday, a sure sign that Election Day is approaching. The campaign of Carole Keeton Strayhorn jumped into the fray later after being alerted to the fight.


According to data compiled by the Leffingwell campaign, mayoral opponent McCracken has illegally collected 49 out-of-town contributions—about $8,000—in violation of the aggregate out-of-city cap of $33,000 contained in the Austin City Charter.


A campaign finance report filed by the McCracken campaign on Friday lists 50 out-of-town donors for the past month with donations of more than $8,000. The problem is McCracken had almost reached the out-of-town cap when he filed his previous report on April 9. Of the $300,000 McCracken has raised, about $41,500 came from non-Austin donors. 


But McCracken spokesman Colin Rowan said the Leffingwell campaign is misinterpreting the law and that the charges are politically motivated. 


“My recommendation is that Lee’s campaign spend more time trying to articulate the kind of Mayor Lee’s going to be and less time making baseless, desperate eleventh hour political accusations at his opponents,” Rowan said. “We are getting a very good idea of what kind of Mayor Lee Leffingwell would be.”


Although rarely prosecuted, violations of this type are a Class C misdemeanor, punishable by a fine of up to $500.  According to the charter language, “Each expenditure, contribution or other action in violation of this chapter constitutes a separate offense.”


Leffingwell’s press release says, “According to McCracken’s reports, his out-of-city contributions totaled $32,625 on March 30th, the last reporting deadline.  From March 31st through April 29th, McCracken accepted a total of 50 out-of-city contributions, 49 of which were in violation of the cap.  McCracken also reported accepting $600 from one political action committee, Raba-Kistner PAC of San Antonio, in violation of the $350 limit on PAC contributions.”


Mark Nathan, spokesman for the Leffingwell campaign, said Leffingwell has complied with the cap, raising approximately $25,000 as of today from out-of-city donors.  Leffingwell began fundraising on January 16, 2009, and both Leffingwell and McCracken have raised approximately $20,000 per week since entering the race, he noted.


Leffingwell’s total raised to about $198,000, plus a $100,000 loan from the candidate. He retains more than $87,000, a good beginning for an expected runoff with either McCracken or Strayhorn.


Among those out-of-towners giving to McCracken are a number of folks from McCracken’s home town, Corpus Christi, including former City Manager Toby Futrell. 


Part of the problem is the Leffingwell campaign has a pattern when they’re trying to knock someone down, they charge ethical violations,” he said. “On the out of town stuff, this has been checked and double checked. You are allowed $33,000 from out of town donations and $22,000 for a potential runoff; you can collect it, you just can’t spend it.” Rowan also argued that McCracken could collect money for his office holder account in addition to the funds for the election and runoff.


Mark Sanders with the Strayhorn campaign said Strayhorn has not exceeded the out of town limit. He also disputed McCracken’s interpretation of the campaign finance law.


“That’s wrong… they can’t do that,” he said. “The law says you can raise money if you’re in a runoff – not in anticipation – and you can keep $20,000 of the money you can raise for the office holder account. They’re totally misinterpreting the rules,” Sanders said.


Jim Cousar, an attorney with considerable experience in campaign finance law who advises the Leffingwell campaign, told In Fact Daily, “We’ve had these limits in place since 1997 and this is the first time I’ve heard anyone advance the theory that you can collect more than the per election limit and say ‘I’m going to use it in the runoff.’”


Cousar noted that the federal election system does allow candidates to collect money for runoffs before the runoff has been declared. However, he said federal law “has very specific regulations about how you do it,” including that the funds be put in a separate account designated for that purpose.


He also rejected the idea that McCracken or any other officer holder could collect an extra $20,000 from outside the city for an office holder account. The law clearly allows a candidate who is elected to keep $20,000 for an office holder account but “it’s still got to be a legal contribution,” Cousar said. “If it’s not legal, you’ve got to give it back.”


The law says City of Austin officials “have to stop collecting money the day after the election. They’re almost the only officials in the state of Texas who can’t collect money for an office holder account,” Cousar said.


Regardless of what the arguments are in this matter, the chances of it being resolved in court before Election Day are virtually non-existent. A citizen could file a complaint for Class C misdemeanor with the Municipal Court but it would be up to the City Attorney’s Office to prosecute. That’s not a quick process and this would be a novel case. It was only last year that the city adopted enforcement provisions for contribution limits. Before that, the charter prohibition was unenforceable, Cousar noted.

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