It sounds like a simple question:
Is the average voter personally affected when a candidate or campaign committee violates D.C. election laws?
Most Washingtonians would probably answer “yes.” Most Washingtonians don’t work for the D.C. Board of Elections and Ethics.
On May 2, the board issued a ruling that may cripple Ward 1 activist Dorothy Brizill’s campaign to increase public accountability over city campaign laws. Brizill had asked the city to review the Office of Campaign Finance’s (OCF) investigation of campaign violations by Mayor Marion Barry, former Mayor Sharon Pratt Kelly, and political action committees (PACs) that supported both candidates. But the board held that Brizill lacked “standing.” According to the board, if the D.C. government investigates campaign violations, a voter cannot demand a full review of the probe, even if it is conducted under questionable circumstances.
“This sets a terrible precedent….It’s going down that slippery slope,” says Brizill. “If the board doesn’t exist to hear from voters who have complaints about election fraud, then who does it serve?”
The conflict stems from charges raised by Brizill in the wake of the 1994 election. Brizill, who is known around town as a better ethics watchdog than OCF, pressed that agency to investigate campaign violations by Kelly’s committee, the Friends of D.C. (a pro-Kelly PAC), Barry’s committee, and the pro-Barry Washington Business PAC. According to news reports, the campaign committees and the PACs were breaking the law by sharing workers and office space. In addition, Kelly’s committee was reportedly taking contributions above the legal limit.
In December 1994, acting OCF Director Victor Sterling reached secret agreements with the four groups. The groups paid nominal fines—from $300 to $500—and were not required to admit guilt. The covert deals were only made public after Washington City Paper and WRC-TV reporter Tom Sherwood filed Freedom of Information Act requests.
Sterling closed the cases after imposing the fines, but Brizill was infuriated by OCF’s quiet and ineffectual response. In January, Brizill petitioned the board of elections to reopen the cases, raising concerns that the fines were far too light and charging that Sterling’s deals were illegal because his term had expired.
But the board rejected Brizill’s request, ruling that only people directly involved in the campaigns or the person whose complaint instigated the probe can challenge the results of an investigation into campaign finance irregularities or election fraud. Jane Q. Voter cannot. (Though Brizill pressured OCF to look at Barry’s and Kelly’s campaign irregularities, the OCF did not base its investigation on her complaint.)
William Lewis, general counsel to the elections board, says the three-member body had no choice but to rule against Brizill. According to the Supreme Court and the D.C. Court of Appeals, Lewis says, “Average citizens don’t have the right to sue a government entity unless they can show they have been injured.
“The government cannot be stopped and should not have to stop to defend action by anybody merely because they disagree with [the government],” Lewis continues.
But if a voter—a person who cast a ballot in the election tainted by campaign violations—is not injured by such fraud, then who is?
Lewis says that a “generalized grievance is not enough to show personal injury.”
Brizill says she was surprised by the ruling, since in the past the elections board has permitted anyone present at a hearing to speak on any issue.
“[The board] took several steps backward,” Brizill says, adding that the board’s ruling also failed to acknowledge she was a “party of record” on the cases involving the Kelly campaign committees.
A legislative aide for D.C. Councilmember Harold Brazil, whose Committee on Government Operations oversees the elections board and OCF, said the lawmaker “strongly disagreed” with the ruling that Brizill did not have standing.
“The election process affects everyone. As a registered voter, you should be able to take umbrage with something a candidate did that appears to be skirting the law,” says Brazil aide Rob Warren.
The board’s action may prompt a rapid council response. Last month, the council approved emergency legislation that raises fines for campaign violations and permits the elections board, rather than the mayor, to appoint the OCF director. A public hearing on whether to make the emergency legislation permanent is scheduled for June 15, and Warren says the issue of “standing” will certainly be on the agenda.