Benedict Charges Campaign Finance Violations

Wes Benedict (Photo By John Anderson)

Last week, Wes Benedict, defeated City Council candidate and once more executive director of the Texas Libertarian Party, accused nearly the entirety of the council of violating local campaign fundraising ordinances by accepting out-of-town contributions in excess of several thousand dollars. Benedict singled out his victorious Place 4 opponent, incumbent Betty Dunkerley, who has indeed returned more than $13,000 in "illegal" contributions from non-Austinites. But Benedict added that according to his campaign's calculations, during the last two election cycles, six other current members of the council – all but Mayor Pro Tem Danny Thomas – have been well over the legal limits set for out-of-town contributions.

Thus far the official response has been largely a collective shrug, reflecting that the officeholders – as well as the city attorney's office – consider the campaign finance law outdated or unenforceable or both.

In addition to the $100 cap on individual contributions to candidates, the city charter allows for no more than $15,000 "from sources other than natural persons eligible to vote in Austin" (with an additional $10,000 for any run-off). Benedict says that Dunkerley totaled $32,835 in out-of-town contributions, and even after returning $13,000, she is still "nearly $5,000 over the limit."

According to an analysis by Benedict's campaign manager Arthur DiBianca, almost the entirety of the council, Mayor Will Wynn included, accepted too much money in out-of-town contributions: In 2003, Wynn garnered $31,040 in contributions, Raul Alvarez collected $23,342, and Brewster McCracken (who because of a run-off was allowed an additional $10,000 over the $15,000 cap), accepted $67,300. In 2005, Benedict believes, both new council members Lee Leffingwell and Jennifer Kim accepted more than $25,000 in contributions from non-Austinites. Benedict and DiBianca say they arrived at the estimates of improper contributions by checking donors' names against local voting records, to match donations with donors' home addresses.

"What I think the Dunkerley return of money shows is, frankly, how pathetic the city's enforcement mechanism is for campaign finance violations," said Fred Lewis, who heads the watchdog group Campaigns for People. Lewis is also currently representing Benedict in a lawsuit against the Real Estate Council of Austin Good Government PAC (Political Action Committee) and the Austin Police Association PAC. The suit, filed in early May, accuses the PACs of funneling money from one to another, and thereby exceeding campaign contribution limits. Defeated Place 3 council candidate Margot Clarke recently joined Lewis' suit.

"We have a voluntary system in Austin. … There is no enforcement," said Lewis. "The city claims that they cannot enforce its [own] law." According to Lewis, Austin's city attorney's office claims the 1997 language restricting campaign contributions does not have a penalty provision, making it unenforceable. Lewis disagrees. "I think it's [enforced] all the time [elsewhere]. … Even if it's true, they can fix it easily with an ordinance. [The city attorneys] just sit around and scratch themselves." Lewis also blamed local "standing" provisions, which set the legal basis for bringing lawsuits, as being unclear and hampering litigation against campaign finance violators. "When you put that all together there is no enforcement mechanism in the city," unless there is "public pressure and publicity," said Lewis. "And that is pathetic."

One thing all parties agree upon is that the current law isn't working. "I can't speak to the accuracy of Wes' numbers, because I haven't seen them," said Mark Nathan, Dunkerley's campaign manager. Nathan said the additional out-of-town contributions occur "primarily when people who live in West Lake or Sunset Valley or Rollingwood or other immediately adjacent communities give council candidates a contribution check that shows an Austin address. It's not an attempt to skirt the cap by the candidates."

"But whether [his charges] are perfectly accurate or not, Wes is raising a legitimate concern. It's just not the one he thinks it is," Nathan continued. "The truth is, Austin's contribution rules are crafted in such a way that it is practically impossible to adhere to them without making honest mistakes."

"It's a bad ordinance. It has squeezed the democratic process," agreed Mayor Wynn, who voted on the council to put the campaign finance law repeal on a 2002 ballot, where it was defeated. Wynn also said from his conversations with the city attorney's office he concluded that the out-of-town contribution limit is unenforceable. Both Nathan and Wynn characterize the ordinance as unconstitutional, as infringing on free speech. As for Benedict's specific allegations, Wynn said, "It's news to me. We'll find out if it's accurate or not."

"We put a lot of controls in," the mayor said, saying he never solicited any out-of-Austin funds, but he also noted, "It's difficult to ascertain where these checks come from. Thanks to Linda Curtis, [candidates] can't raise enough to hire people to find out." (Curtis was a leading proponent of the 1997 adoption of the ordinance.) "The problem with the out-of-town rule is in determining where the contributors actually live," concurred Nathan. "There is just no reliable way to do it, short of driving to the address of every single contributor to see what side of the city limit line they may happen to live on." Asked about the prospects for a new referendum on repealing the charter, Wynn said "it's going to take momentum from outside city hall."

As the figures are sorted out, Nathan suggested creation of a citizens commission "to review Austin's campaign finance rules and make recommendations to the council that would then be put before the voters." Lewis similarly suggested that the "ethics commission should get together and look at making an effective campaign enforcement law, or the City Council should appoint people." Ultimately, Lewis laid the blame squarely at the feet of the office of the city attorney and its lax enforcement standards. "I don't believe that if you dislike the law you have the right to violate it. It doesn't work that way."