Building a Political Syndicate and Violating Local Campaign Laws

THE DC Office of Campaign Finance (OCF) decision in its investigation of At-large DC Council member Elissa Silverman’s actions during the June primary election is apparently the first major ruling related to the city’s Fair Elections Amendment Act—a reform that was supposed to expand the candidate pool, allowing more voices and participants in the elective process.

Still, the finding and ruling are unsurprising. The Barras Report (TBR) and others have witnessed at least a half-dozen cases of questionable and seemingly unethical behaviors by elected officials or candidates and/or their supporters, including possible coordination between various campaigns, staffers of those campaigns and the political action committee DC for Democracy during this 2022 political season.

Silverman’s offense, according to the OCF, was using public money, provided through the Fair Elections program, for two polls whose results were then shared with Patricia Duncan and Benjamin Bergmann--candidates who were already on the ballot for the Ward 3 Democratic Primary.

There were as many as nine candidates in that race. The current council member, Mary Cheh, had announced her retirement, inspiring a primary free-for-all. Eric Goulet, a former DC council staffer and mayor budget director under Vincent Gray, seemed to have best chance of winning. Silverman’s poll confirmed his position in the race. By her own admission, she didn’t want him to win.

To put it bluntly, Silverman wanted the Ward 3 winner to be someone that she could effectively ride to the finish line in the November election. She also wanted someone aligned with her political ideology who could add to the weight of the far-left leaning section of the legislature. Silverman had her eyes on Matthew Frumin. That wasn’t the first time, however.

Consequently, she declined to endorse Duncan and Bergmann who had sought her backing. Instead, she cautioned them about the impact of vote splitting. Those were code words that subtly urged them to leave the race. They did. That enhanced Frumin’s standing against the front-runner Goulet.

That all happened just weeks before the June 21 election. Voters had already received their ballots in the mail. Some had already marked those ballots and returned them to the Board of Elections.

Indisputably, Silverman interfered with an election already in progress. That, in TBR’s opinion, is a serious offense.

When news of Silverman’s maneuver became public, TBR blasted it as unethical and illegal. The latter was underscored in the OCF report of its investigation, which was prompted by a complaint filed by Karim Marshall, an independent running for an at-large seat on the council in the November general election; current Council Chair Pro Tempore Kenyan McDuffie, Graham McLaughlin and Fred Hill are also running as independents. David Schwartzman is running as the nominee of the Statehood/Green Party and Giuseppe Niosi is the Republican Party nominee. Incumbent Anita Bonds is representing the Democratic Party. Silverman, an independent, is also an incumbent running for a third term.

“Based on the evidence reviewed, the Elissa for DC Principal Campaign Committee and Councilmember Elissa Silverman are in violation 3DCMR Section 3033.1and 3DCMR Section 4209.6 pursuant to their expenditure of Fair Election Funds to commission a Poll regarding a Primary Election in which the Councilmember was not a candidate,” wrote William O. SanFord, the OCF’s general counsel.

He recommended that Silverman be required to repay the $6,277.52-- public money she used for the polls. OCF’s Executive Director Cecily Collier-Montgomery concurred and issued the order on Thursday Oct. 27.

The report doesn’t explicitly prohibit Silverman from using money received from the Fair Elections Program to repay the illegal expenditure. Thus far, her campaign has been paid $254,862.00 through the program. She may still be eligible for $66,557.55.

The demand for reimbursement made by OCF does not account for the wasted investment from the aborted campaigns. Together Bergmann and Duncan received nearly $200,000 through the program from taxpayers.

District residents have spent $11,795,156.90 this political season on campaigns, according to OCF’s website.

SanFord’s investigative report chastised Silverman for not counseling candidates of “their commitment to District residents who supported their candidacies through investment of small dollar contributions” to continue in the race. He could have added that taxpayers’ wallets were being tapped without their permission and in many cases for candidates they didn’t support. (That’s another story, however.)

In a public statement after the order was made public, Silverman cast herself as a victim of “real estate developers, city contractors and other big-money corporate interests.” She gave that as the reason she was a “supporter of Fair Elections to help level the playing field.”

“In every election, I’ve also used polling to help me make electoral decisions,” she continued. “I believe that the polling for a citywide candidate was within the Fair Elections regulations, and I’ll be asking for a full hearing with the [Board of Elections] on the matter.”

Silverman also accused OCF of reneging on an agreement it made with her attorney about the timeline for completing the investigation. She said the agency rushed its decision.

That statement ignores the fact that the OCF provided her attorney two extensions, after he promised to provide a “full response.” He never did; it appeared that he was attempting to run out the clock. He had been given a deadline of Oct. 14. But, on Oct. 14 at 5:18 pm he sent a note to the agency indicating he would not make the deadline.

Clearly the timeline he and his client preferred would have greatly advantaged her. The results likely would not have been made public until around Nov. 21—long after the general election.

Writing on his Twitter account, Marshall said that the OCF “validated” his views. “The District needs an at-large council member who demonstrates ethical leadership, strong moral judgement and clear understanding of the law.

“Silverman has instead shown her willingness to use her elected position and public money to her benefit while ignoring the law,” added Marshall.

Charles Wilson, chair of the DC Democratic State Committee, condemned “the infringement upon the Democratic Primary Elections. Ward 3 Democratic voters deserve fairness and integrity in the electoral process.

“We stand with voters against the manipulative tactics used by the Elissa for DC campaign,” he added. Silverman has not been without her defenders, a few took to Listservs and Twitter. Keshini Ladduwahetty asserted the OCF is “wrong” and encouraged Silverman to appeal the ruling.

Silverman, a backer of the Fair Elections Act, had deliberately sabotaged one of its chief missions--expanding the number of candidates and stimulating overall participation in local elections--with the aim of serving her political ambitions, and no one else.

IT’S a good thing that OCF completed its investigation before the election. Truth be told, the probe was incomplete and the remedy insufficient, however.

“It’s a very poorly written decision,” said Dorothy Brizill, a recognized expert on local elections and local campaign finance laws. During her career, she has filed more than a few complaints resulting in politicians or their supports being cited for various violations. She lamented that OCF didn’t cite “a single case or past decision” that could have resulted in a “tightly worded landmark” ruling that would serve the city for the future.

Oddly, on Saturday, the OCF report was buried in a remote section of the agency’s website, making it difficult for average citizens to locate it. Further, Silverman’s violation was listed as “a conflict of interest—” a deceptive label that prevents full disclosure and transparency.

Equally important, OCF investigators did not interview all of the players in the Ward 3 political drama. It didn’t explore the issue of whether Silverman, Duncan, Bergman and Frumin colluded--a worthy exploration in TBR’s mind.

Despite the seriousness of its findings, the agency also did not levy any penalty against Silverman; the law permits a fine of at least $2,000 per violation.

Interestingly, in 2019, Brandon Todd was accused of trying to sway the nonpartisan State Board of Education race in favor of Rhonda Henderson. The OCF fined him $4,000. In other past local elections, campaigns for Marion Barry and Vincent Gray were cited and fined for comparable violations.

Were it not for the fact that DC Attorney General Karl Racine has been cloning himself this election season, including making political ads with and for Silverman, he might have opened his own review or investigation, focusing on whether Ward 3 voters were denied the full exercise of their voting rights. With the District’s AG entangled in legislative branch politics, the burden of election protection stands at the door of the U.S. Attorney’s office.

TBR is less than sanguine that help will come from the feds. And no one should expect much from the DC Board of Ethics and Government Accountability (BEGA); it appears perpetually engaged in selective enforcement.

With the OCF finding against Silverman’s campaign committee and her, as council member, and the matter related to the use of public/government resources, BEGA could assert itself.

When then-Ward 2 Council member Jack Evans was accused of using government resources for his personal benefit, The BEGA levied a huge fine against him. The council also issued a reprimand.

Will any of that happen to Silverman?

Council Chair Phil Mendelson did not respond to my emails requesting comments. There are, however, several reasons for him to recommend legislators voice their discontent.

Silverman has behaved as a serial ethics violator: In 2013, in her run for the council, she engaged in what some have called her first act of political manipulation. She tried to get Frumin, also a candidate, out of the race, promising to help him in Ward 3 in future competition involving Cheh. Another poll, this one sponsored by marijuana legalization advocates, was the vehicle she used to make her case. Frumin didn’t bite.

Two years ago, during the 2020 primary season, Silverman forced elections officials to illegally allow as many as 1,000 voters to cast ballots using an online system that was created for persons with disabilities and veterans, according to an agency spokesperson and documents reviewed by TBR. Silverman was hard at work trying to unseat Todd in Ward 4

and get Democratic Socialist Janeese Lewis George on the council.

Silverman admitted her actions to TBR but blamed an election process adversely impacted by the COVID-19 pandemic. Her ally and Ward 6 colleague, Charles Allen, who has oversight of the elections board, took no action. BEGA didn't either.

This year, 2022, Silverman intervened in the primary election. This time Frumin ended up as beneficiary.

Will any one step in to prevent another episode?

IS THIS UNIMPEDED CORRUPTION IN PLAIN SIGHT?

SILVERMAN and others appear interested building a political machine that might rival the one constructed by mayoral legend Marion Barry or the one created by former mayor Adrian Fenty. She and the crew of far-left political ideologs have tended to blur or destroy ethical lines and firewalls.

Two groups--DC Working Families Party and DC for Democracy, a political action committee—have fueled that effort. While they present themselves as two separate entities, they shadow each other and have interlocking leadership. In fact, at one point, several legislators were members of the PAC, including Allen, Silverman and Lewis George.

Neither the OCF nor BEGA has examined the connection between those groups, particularly DC for Democracy, and candidates and elected officials. The collaboration has caused some political observers to question whether campaign finance laws are being broken.

“They have been breaking the law for years. What they do is illegal,” one political operative told me, wondering “Why hasn’t anyone in the media exposed this.”

In this year’s primary, for example, DC for Democracy seemed to be running a slate of candidates. It wasn’t enough to endorse those individuals, including incumbents, the PAC apparently conducted strategy sessions with members of the candidates’ campaigns. Using the organization's mailing lists and networks, it helped organized teams to participate in get-out-the-vote efforts.

“There are two things every campaign need: money and bodies,” said Brizill.

In its investigative report related to the Silverman complaint, OCF defined the concept of coordination. According to DC law, a PAC isn’t supposed to be controlled with or coordinate with any public official, agent of a public official, staffer, candidate or political committee affiliated with a public official.

Despite documented evidence of such coordination, OCF has not scrutinized DC for Democracy or DC Working Families Party. That failure is mostly an element of the agency’s reactive approach to enforcement. It often waits for a complaint from a resident or some external group to trigger an investigation.

For example, Silverman committed her offense in June. But it wasn’t until August 26, after Marshall filed his complaint, that OCF announced it had opened an investigation. Would OCF have conducted such a review, knowing thousands of public dollars were involved, if he had not asked for it?

Unquestionably there are many things to be reviewed and scrutinized. Consider the role played by government staffers on the political committees.

After the federal government amended its Hatch Act, allowing more of its employees to be involved in political campaigns, District legislators made a comparable change to the local Hatch Act (D.C. Code § 1–1171.02(b)). It allows the mayor, council members, and the attorney general to designate an employee to engage in fundraising. The employee can provide services only for a principal campaign committee, an exploratory committee or a transition committee. That individual is supposed to be on “annual or unpaid leave” to perform such functions. Further, the employee “shall not perform the functions while the employee is on duty or in any room or building occupied in the discharge of official duties in the District government, including any agency or instrumentality thereof.”

Letters naming the staff designees are required to be filed with the DC Council’s Office of the General Counsel and BEGA. Earlier this year, when I began investigating this issue, TBR sent an email to Nicole Streeter, the legislature’s lawyer, asking for more information and was referred to BEGA.

Ashley Cooks, the agency’s executive director, directed TBR to the section of the agency’s website where the correspondence could be found. Mendelson identified Declan Falls as his designee. At-large council member Robert White, who ran for mayor during the June primary, name Luz Martinez; she actually worked for Ward 1 legislator Brianne Nadeau. McDuffie appointed Marisa Flowers; Trayon White identified Wanda Lockridge. Bonds seemed not to have a letter on file.

The law presumes that officials with designees are actually running for office. In a letter dated May 24, AG Racine indicated that Abby Wilhelm was the person designated to work on his campaign. That correspondence was filed well after Racine had announced he did not intend to run for a third term as AG and had also closed the door to any mayoral bid.

So why did he need someone working in a campaign? Through a spokesperson, he told TBR that Wilhelm was helping to close his committee. What did that mean?

Racine last ran for re-election in 2018. Before then, he said he would no longer fund raise to pay off the whopping $350,000 he still owed himself from his 2014 campaign. If there was no debt, there was no race, why did he need someone to help him raise money?

TBR was told to check with Natalie Ludaway, his campaign chair. Despite leaving messages at several places, she never called back.

Was there a link between the AG’s designee and Racine’s zealous citywide campaigning on behalf of Brian Schwalb who is vying to become the AG’s successor.

In the Ward 1 Democratic Primary, Nadeau identified Jacqueline Castaneda as the person on her council staff that would also work in her campaign.

According to DC for Democracy’s website, at the time, Castaneda was the treasurer for that organization. Should Nadeau have made that kind of designation that on the surface seemed to breach the firewall, and could give the perception of coordination?

Based on expenditure reports filed with OCF, Castaneda was receiving $800 monthly from the campaign. In May, when TBR asked Nadeau about the arrangement, Nadeau essentially dismissed all concerns. When asked whether Castaneda was on annual or unpaid leave, Nadeau said in an email mail dated May 26, 2022 that “She is not required to be on leave.” That contradicted information on BEGA’s website.

There is no evidence that BEGA had conducted its own review of the roles council staffers were playing in the campaigns. The agency certainly didn’t red-flag or questioned Castaneda’s association with DC for Democracy. If it had, it may have been troubled by the adverse impact of that relationship on the Ward 1 primary.

Nadeau was up against a strong opponent in the June primary, Salah Czapary. With the help of individuals working with DC for Democracy, she mounted a vigorous assault against him.

The attack began with Alex Dodds, who was listed on DC for Democracy’s website as its chair. On Twitter, she questioned whether Czapary was a front for the Republican Party. The father of Czapary’s campaign chair was described as a Pro-Trump appointee and ally. Czapary, said he hadn’t checked credentials but when he did, he asked his chairman to step aside and appointed someone new.

DC for Democracy didn’t stop there, however. The campaign to discredit the former MPD officer jumped into full swing when Washington City Paper’s Loose Lips wrote an article, based on the information Dodds had shared on Twitter. Then LiUNA, a union that supported Nadeau, launched an ad campaign using that same information whose original source was DC for Democracy. Nadeau eventually created her own media around it.

This all took place while Castaneda was working on Nadeau’s campaign and while she also served as treasurer of DC for Democracy.

The sequence of events and the appearance of coordination should have caught the attention of the OCF. If it did, there has yet to be any indication that campaign finance officials or those with the Elections Board conducted any review.

As council chair, Mendelson didn’t publicly criticize the seemingly incestuous relationships—although he must have known about Nadeau’s connection to DC for Democracy and that of other council members.

In the primary, Silverman endorsed Nadeau and Allen. They have endorsed her in this general election. They and other members of DC for Democracy have conducted “get-out-the-vote events” for each other, as recently as this past weekend.

Should such events, led by the PAC, be considered in-kind contributions?

DC Municipal regulations outlined in Chapter 99 indicate that in-kind contributions are to be “treated as any other contribution and are subject to contribution limits.” They “must be reported and itemized in the appropriate category of receipts.”

The most recent documents filed by Silverman and DC for Democracy do not list any in-kind contributions. Consequently, TBR asked OCF’s Wesley Williams whether the agency had reviewed DC for Democracy’s behavior and whether it was skirting rules that regulated coordination between campaigns and political action committees and whether it should report the work it has been doing on behalf of candidates, including Nadeau, Allen, Ward 5 Democratic council nominee Zachary Parker and Silverman.

“Further review of this matter is partially dependent upon the next report due by both committees and the expenditures reported on it,” said Williams, adding that the 8 Day Pre General Election Report is due October 31.

That kind of reactive enforcement doesn’t serve to enhance campaign finance reform any more than citing a critical violation in an investigative report without levying a fine or penalty. If District laws and regulations aren’t followed, clean and ethical government become nothing more than sloganeering.