The Illinois State Board of Elections deadlocked 4-4 Oct. 21 along partisan lines on a motion to deny an appeal by State Senate President Don Harmon of $9.8 million in forfeitures and penalties related to his alleged violation of state campaign finance laws.
After hearing ISBE Deputy General Counsel Jordan Andrew give a review of the case and Harmon attorney Mike Kasper’s detailed response and argument, a motion was made to accept the recommendation of ISBE hearing officer Barbara Goodman and General Counsel Marni Malowitz to deny Harmon’s appeal of the decision by ISBE staff.
What began as purportedly an issue regarding the distinction between “election” and “election cycle” soon evolved into a question of who has ultimate authority to decide on matters of sanctioning a political committee for alleged campaign finance violations.
After the deadlocked vote and more than an hour of back and forth, it was decided to table further discussion and any decision until the board’s regularly scheduled Nov. 18 meeting.
Both sides appeared to have agreed Tuesday that it is the election board’s role to approve any actions by ISBE staff. Though appearances can be deceiving.
“What we have before us are multiple interpretations of statutory language,” Andrew said toward the close of debate.
In an Aug. 15 memo, Malowitz wrote that “the language of Section 9-8.5(h) ‘answers two important questions’: when may a candidate self-fund, and for what duration does an act of self-funding lift contribution limits under the law.”
An act of self-funding, Malowitz contended, is permitted “within the 12 months prior to an election,” and not necessarily an election in which the candidate is running. But any act of self-funding, she said, “can lift contribution limits for no longer than one election cycle, unless,” she said, under Section 9-8.5(h) the limits are extended due to a candidate winning a primary and becoming the party nominee in the general election.
Malowitz concluded that since the Harmon campaign “accepted contributions in violation of Section 9-8.5(b)’s limitations as shown in Exhibit D, and it failed to return or dispose of the contributions as required by Section 9-8.5(j), its appeal should be denied, and the fines assessed against respondent should be subject to a final order of the board.”
But after nearly an hour of back and forth between Kasper and Andrew, and intense debate among election board members, the issue of “election” versus “election cycle” seemed to fade, and there were far more questions than answers.
When Andrew said there was “no action by the board,” due to the deadlock, and stated that the penalties and forfeitures “are due and owing,” Kasper objected, saying “you can’t assess until you find a violation.”
“There must be action by the board,” Kasper argued. “There has to be an affirmative vote.”
Among the questions certain to be at issue at the Nov. 18 meeting is whether the imposed penalties and forfeitures (escheatment) can be summarily imposed by ISBE staff who are charged with overseeing campaign contribution compliance, or if they must be affirmed by a majority vote of the elections board in order to take effect.
Kasper suggested the answer to that question was contained in ISBE staffer Tom Newman’s June 4 letter to Harmon.
“The total amount of $9,846,475 … will be imposed with the issuance of a final board order after the 30-day appeal period has expired,” Newman wrote Harmon. “This amount must be paid within 30 days of the issuance of the board order.”
“It didn’t say the total amount IS owing, it said it will be upon the issuance of a final order,” Kasper said. He also referred to Sec. 1A-7 of the Illinois election law, which states that “Five members of the board are necessary to constitute a quorum and 5 votes are necessary for any action of the board to become effective…”
Andrew acknowledged that “typically speaking,” fines and other actions taken by ISBE staff that come before the board as agenda items are voted on before becoming final.
“Typically, in the past, committees that had been assessed similar penalties simply returned the fines,” she said. “What we have before us are multiple interpretations of statutory language.”
The board was finally able to agree that the issues before them were effectively “a case of first impression, that is, a legal issue that has never been decided by the governing jurisdiction.
“We need a road map,” board member Catherine McCrory said.
Andrew said the Harmon case presents a unique set of circumstances to the board. “Unfortunately, I cannot speak to what we have done specifically for violations for alleged, for assessments that have been appealed … because this is a matter of first impressions.”
“We have not had this exact experience with these exact types of fines come before the board. Nor have we had that come before the board with a 4-4 vote.”
“I can’t tell you, ‘Oh, we had this back in 2021, this is what happened X-Y-Z, (how we) went forward.”
Andrew allowed that “there has been no final order to assess the penalties at this time.” She said the board could vote to assess or not assess the penalties brought by ISBE staff. However, she added, given the obvious split, “We’ll be entering a cycle of 4-4 (votes) on what to do.”
“We are pleased with today’s results,” a Harmon spokesperson said Tuesday. Though Kasper made it clear he’s prepared to sue in circuit court if the ISBE eventually rules against Harmon, saying, “I will appeal an adverse action against my client.”
There are significant time pressures weighing on Harmon. First, Illinois law prohibits candidates from running for office if they have unpaid fines owing to the ISBE.
And Harmon will be filing required nominating petitions between Oct. 27 and Nov. 3. The names of all candidates for the March 17 primary ballot. must be officially certified no later than Jan. 8.