Elissa Silverman
D.C. Councilmember Elissa Silverman Credit: Darrow Montgomery/File

D.C. elections officials have smacked down At-Large Councilmember Elissa Silverman’s challenge to a ruling that she broke campaign finance laws.

The Board of Elections voted 3-0 late Friday to toss out Silverman’s appeal of a ruling from the Office of Campaign Finance that she misused campaign funds in polling the Ward 3 primary this summer, discarding Silverman’s arguments that the investigation was shoddy and violated her due process rights. OCF previously ordered that Silverman must repay the roughly $6,300 she spent on those polls, sparking a weeklong controversy as her opponents sought to wield the ruling as a cudgel against her in the final days of the at-large race.

The board’s ruling doesn’t address the central allegations from fellow at-large candidate Karim Marshall in his request for an investigation—namely, that Silverman improperly coordinated with other candidates in the Ward 3 race by sharing poll results with them in a bid to convince them to consolidate behind eventual nominee Matt Frumin to beat Eric Goulet. Officials merely considered Silverman’s claims that OCF misled her about the timing and scope of their investigation, siding with OCF’s arguments that Silverman was properly informed about the matter.

She claimed that OCF’s top lawyer, William SanFord, assured her in late August that OCF wouldn’t issue a ruling until she filed a response to Marshall’s allegations, and that she had 90 days to do so. That would put her deadline to reply at Nov. 21. She provided evidence of those discussions with SanFord in her request for the BOE hearing, asserting that he told her attorneys that he “did not want to influence the upcoming election.”

Silverman answered some questions from OCF in the ensuing weeks, but she alleges that SanFord reversed course on Sept. 28, demanding a full response by Oct. 14. She said she’d miss that deadline, but could offer something by Nov. 4—OCF then published its ruling on Oct. 27, and SanFord denied he’d ever said his office would hold off until Silverman could respond.

“This denial is either a deliberate misstatement or a reckless and repeated disregard for the truth,” attorney Jason Downs, who is representing Silverman, wrote in the appeal of the OCF ruling. Until moving to private practice last year, he worked as a top deputy to Attorney General Karl Racine, one of Silverman’s top endorsers. Racine has vocally criticized OCF’s decision.

This apparent reversal has fueled speculation among Silverman’s allies that Mayor Muriel Bowser, no fan of the lefty lawmaker, pressured OCF to release its findings to torpedo her campaign at the last minute, boosting Ward 5 Councilmember Kenyan McDuffie in the process. Ben Bergmann, one of the Ward 3 candidates that Silverman discussed the poll with in the first place, compared the drama to former FBI Director James Comey’s “election-eve letter” about his investigation of Hillary Clinton in 2016, which many believe accounted for her razor-thin loss to Donald Trump.

“If releasing a politically explosive decision just days before an election—a decision likely to be appealed and reversed—isn’t prohibited by ethics rules, it certainly should be,” Bergmann said in a statement.

OCF claimed that Silverman misinterpreted SanFord’s definitions of the 90-day window, saying that was the timeline for an investigation to be completed, not for Silverman to file her response to the allegations. SanFord said at the hearing Friday that Downs repeatedly acknowledged the various deadlines OCF outlined, agreeing at one point to a Sept. 30 deadline for a response. He added that “there was never an agreement” that Silverman “would have a 90-day period to respond to a four-and-a-half page complaint,” and that OCF repeatedly offered Silverman more time.

“During the entire process, Mr. Downs never indicated why he needed more time than the time allotted,” SanFord said, gamely continuing his arguments despite a Zoom-bomber disrupting the virtual meeting by masturbating vigorously on camera. 

Board chair Gary Thompson said it was “quite clear” what SanFord meant with the 90-day timeline, reasoning that it didn’t make much sense that OCF would be required to issue a ruling within that time period but still be waiting on Silverman’s response.

“There was no timeframe [at first], no time for when things had to get done,” said board member Karyn Greenfield. “Once [SanFord] did lay out a date, that changed.”

Silverman also took issue with OCF’s decision to investigate matters that Marshall didn’t raise in his original complaint, which centered on Silverman’s alleged illegal coordination with other campaigns and failure to report her discussion of poll results as an “in-kind contribution” to those candidates. OCF’s ruling ultimately didn’t find any evidence to substantiate those claims (largely because it didn’t put much effort into trying to do so, failing to interview either Bergmann or fellow candidate Tricia Duncan) and instead faulted Silverman for using funds to poll a contest she wasn’t participating in. Silverman says OCF never told her she’d be investigated on that point and claims she didn’t get a full chance to respond to it (though some of her communications to OCF did address this issue, outlining her arguments that gauging the mood of Ward 3 voters was directly relevant to her own campaign).

SanFord countered that Marshall’s original request for an investigation mentioned the section of the code that outlines how candidates can use campaign funds, even if he didn’t call out this problem specifically in his allegations (though Downs disputed this). What’s more, he argued that Silverman should have been familiar with the law’s stipulations since she had a hand in drafting it.

“We have the authority to determine the scope of our investigation and if we uncover misconduct, we have an obligation to reveal that misconduct and publish it in our order and that is exactly what happened in this case,” SanFord said. 

Board member Mike Gill was alone in arguing that Silverman had more of a leg to stand on on this point, but said he would’ve needed to see evidence that she filed a response narrowly addressing Marshall’s complaints to take it more seriously.

The board’s decision was fundamentally a narrow one, however. Silverman’s critics, Marshall and Goulet foremost among them, still believe that this dispute demands more investigation from federal authorities. Marshall tells Loose Lips that he wasn’t able to be part of this BOE hearing because it narrowly focused on Silverman’s process arguments, and he hopes to continue pursuing the matter with another BOE hearing in the future focused on the campaign coordination question. Downs said Silverman would continue pressing her case in advance of that hearing, with additional documents due to the BOE later this month.

Goulet, meanwhile, believes Silverman has already essentially admitted to illegally coordinating with Bergmann and Duncan. He argued on Twitter that Silverman’s own admission that she shared that “Eric Goulet was leading and that Matt Frumin was his closest challenger” proves she improperly discussed results of a private poll with other candidates (this is an area of the law he should have some familiarity with based on his own history).

All of that is unlikely to get hashed out in the scant few days between now and Nov. 8. The temperature will surely get turned down once voters decide whether Silverman and At-Large Councilmember Anita Bonds should return to the Council, or if McDuffie or another member of the pack of challengers should take their places.

LL, for one, would certainly be glad to see this endless re-litigation of the Ward 3 primary come to a close, but Goulet and Marshall have both pledged to press the case even once the general election is over. Should they do so, and an enterprising prosecutor take up this matter, the question of whether Silverman unduly influenced the candidate consolidation will hang over D.C. politics for some time.

In that event, LL offers this bit of caution: Crediting Silverman for clearing the field for Frumin seems to ascribe more power to her politicking than she probably deserves. Bergmann and Duncan have persistently argued that Silverman’s poll wasn’t a deciding factor in their decisions to drop out, citing their fears that Goulet’s wealthy, pro-charter school backers would help him win in a divided field. But they’re biased sources, of course. Contemporary evidence is probably more reliable.

Consider, then, this nugget from former advisory neighborhood commissioner (and Goulet antagonist) Troy Kravitz. He supported Duncan’s candidacy, but drafted a letter in May urging his Ward 3 neighbors to unite behind Frumin. Kravitz sent a copy to Duncan’s campaign on May 20, per emails forwarded to LL, long before Silverman even commissioned her poll on June 7. Clearly, others had ideas about consolidation besides just Silverman.

“Matthew Frumin is not my preferred Ward 3 Council candidate,” Kravitz wrote in the draft, which he ultimately did not publish. “There are several candidates who I believe would be strong additions to the District Council. I know many of them, and I’m personally friendly with a few of them. I like some of them better, but they are not viable candidates for winning the election at this point, and we all must face the sobering reality that elections sometimes compel one to explicitly support someone other than their most preferred candidate.”