Unfortunately, the vote sent the erroneous message that the way Kelty reported loans was purely a Republican-Democratic fight, reinforcing Kelty supporters’ claims.
Kelty’s attorney, James Bopp Jr., certainly cast it that way at Tuesday’s Election Board meeting.
“You are acting as the prosecutor,” Bopp told Andy Downs, the only Democrat on the board, after Downs made his case on why he thought Kelty’s reporting was a possible legal violation.
Bopp said Indiana law was written to allow candidates to use their own resources to run for office, partly so they couldn’t “be drug in front of some election board and have some partisan trash you.”
Bopp also said that the board could not forward the case to the prosecutor merely if it was unsure of the law, as I suggested Tuesday. “You have to have substantial reason to believe there is a violation to take such a Draconian step,” he told the board.
Bopp's personal attacks on Downs during this official, government proceeding were unprofessional to say the least. The sheer arrogance of knowing he could do this without so much as an admonition says much about partisan intent of the Republican members. Warner was equally disappointed in their performance. Warner writes:
The two Republicans on the board – David Wright, the party appointee, and Therese Brown, the clerk of courts – asked no probing questions and expressed little interest in the nuance of the law. Wright started the meeting by saying appointees are expected to leave partisan tendencies behind and later criticized Downs’ presentation as one filled with “supposition and innuendo.”
Wright should be ashamed for allowing Bopp to address Downs in such an insulting and disrespectful manner, even if he didn't agree with Downs' line of questioning or interpretation of the law. “We’re not in your classroom,” Bopp told Downs, who is director of the Mike Downs Center for Indiana Politics at Indiana University-Purdue University Fort Wayne, as a few people in the crowed snickered with delight. “This is a legal matter. This is not a matter of theory.” Whether Bopp liked it or not, as a member of the election board, Downs role meant he had to play the role of prosecutor, judge and jury, a task Wright and Brown were clearly not up to doing.
Warner hits on one very critical point which cannot be overlooked in this case, and this is why I think the board's decision did such a great injustice to our campaign finance laws. Warner writes:
Bopp repeated the main thrust of his legal argument: The Kelty campaign committee accurately and legally reported that Matt Kelty the person loaned money to his committee. Where Kelty got the money is immaterial. “Loans are treated differently,” Bopp insisted, acknowledging that had the money been given rather than loaned, it would be a violation.
Unfortunately, neither Wright nor Brown – nor for that matter Downs – challenged him on this point. In fact, the law specifically defines a contribution as “an advance, a deposit, a gift, a loan, a subscription or a contract or promise to make a donation.”
Nor did the board probe the question of whether a candidate and a candidate committee are totally different entities, as Bopp seemed to suggest.
If Kelty had never disclosed the loan after intense prodding from Republicans, the public would have never known any money was loaned to him for the purpose of financing his campaign so it couldn't even consider whether it was a gift or a loan. I just can't believe such a weak legal argument carried the day yesterday. Do the Republicans on the board have any idea how bad they look right now? Do they even care?