If you can’t beat ’em, sue ’em

A pair of lawsuits seek to nullify the reelections of five Alabama state senators for alleged failure to comply with state campaign finance reporting requirements.  Attorney Mark Montiel calls his lawsuit, "a test of the system."  What he and fellow attorney Mark White are really testing is Alabamians’ patience for political gamesmanship in the name of campaign finance regulation.

White, whose case was filed most recently, seeks to nullify the reelection of Democratic state Sen. Larry Means.  Means faced no opposition on the ballot in either the primary or the general election.  White, however, is seeking to install failed write-in candidate Jack Lowe Jr.–"Sen.-elect Jack Lowe Jr.," as White calls him–in the seat Means has held for three terms.  Lowe received 586 votes to Means’ 4,220.

According to White, Means failed to file required campaign finance reports during the general election.  It appears from the reports that he instead filed waivers showing no campaign activity during the primary or general election, because he didn’t face any opposition.  This is apparently a long-standing practice in primary races.  Means claims that he filed waivers in the general election after consulting both his attorney and the Secretary of State’s Office (though this latter claim is in dispute). 

Mark Montiel’s case is more ambitious.  It seeks to unseat four incumbent state senators, Sens. Roger Bedford, Zeb Little, and Hank Sanders, as well as Senate President Pro Tem Lowell Barron.  Montiel had previously sued , unsuccessfully, to keep the incumbent senators off the ballot altogether.  Afterwards, the four sailed to victory; Bedford ran unopposed in the general election, and Barron, Little, and Sanders were relected by 13, 20, and 30 percentage point margins, respectively.

Montiel claims that the four violated disclosure laws when they failed to report contributions that they made to the Senate Majority PAC.  In their defense, the four cite the same long-standing practice of not filing reports during unopposed primaries relied on by Sen. Means. 

Montiel, as it tuns out, was no stranger to campaign finance suits prior to these filings.  Earlier this year, during a failed bid for the Republican nomination in the state attorney general race, Montiel sued his primary opponent for allegedly violating a restriction on receipt of corporate contributions.  That case was dismissed.

Perhaps its uncharitable to characterize these lawsuits as "political gamesmanship"; we suppose it’s conceivable that Montiel and White are both just really passionate about seeing campaign finance laws enforced.  Perhaps their call for nullifying the election of these five senators, rather than simply fining them, reflects nothing more than a belief in the value of strong deterrence (in Montiel’s case, this is not entirely implausible; as a circuit judge he was known as "maximum Montiel " for his sentencing practices).  But even if Montiel and White are motivated by the purest of intentions, overturning elections for the violations alleged in these cases would be the wrong result.

For one thing, even if Montiel’s and White’s claims have merit, overturning elections for reporting violations would encourage frivolous lawsuits by unsuccessful candidates.  More importantly, though, this result subverts the democratic process, the very process that campaign finance regulations purport to enhance.  Sens. Bedford and Means are apparently so popular that no one, save a last-minute write-in candidate, would challenge either of them in either the primary or the general election.  Sens. Barron, Little, and Sanders all won reelection by massive margins.  It is absurd to think that democracy will be in any way enhanced by unseating them, particularly when there is little reason to believe that accurate reporting would have changed the outcome in any of the elections.  Beyond the failure to report itself, there is no indication that any contributions received or expenditures made were in violation of the law, or even that the senators sought to conceal "unseemly" information from voters.

To be sure, constitutionally valid campaign laws should be enforced against those who violate them.  But in enforcing these laws, we must never lose sight of the purpose for which they were enacted.  We must be particularly cautious when the law is likely to be wielded by individuals more concerned about favored political outcomes than enhancing democracy or serving justice.

(HT: Edward Still’s VoteLaw, for catching a story that otherwise would have slipped through the cracks)

The Center for Competitive Politics is now the Institute for Free Speech.