To all the questions surrounding Commissioner Amanda Fritz's bid to revive publicly financed elections in Portland, you can add one more: Is it illegal?
According to Portland Auditor Mary Hull Caballero, the answer is yes—at least as the policy is written now.
As Portland City Council prepares to take up Fritz's "Open and Accountable Elections" proposal for the first time next Thursday, Hull Caballero says the commissioner is running afoul of the city's charter by dumping the complex administration of the program on the auditor's office against her will.
"This is a city commissioner, over my objection, forcing something onto this office," Hull Caballero told the Mercury on Thursday. "To me it seems to be unprecedented. I don't know of another case where that has occurred."
Hull Caballero's concerns are rooted in a new chapter of city code [PDF] Fritz wants her colleagues to pass in coming weeks. Under a scheme Fritz, with help of advocates, cribbed from New York City and elsewhere, candidates for Portland commissioner, mayor, or auditor could leverage small contributions into hundreds of thousands of dollars in taxpayer cash.
The problem? Fritz's proposal saddles the "auditor" with taking the whole thing on. The policy, as written, suggests Hull Caballero's staff would have to create rules for the system, certify candidates, track and distribute public funds, carefully sift through receipts, keep track of important deadlines, investigate misdeeds, levy penalties, and more.
Hull Caballero says she has no problem with Fritz's push for public financing, but she's telegraphed for months that she doesn't want responsibility for the program.
Fritz's office, in turn, says it has no intention of making the auditor run the program. Though it inserted the auditor's office into its policy over repeated objections, Fritz's staff argues the definition of "auditor" under the law is loose enough to include other entities.
"We are aware of the Auditor’s concerns and have never intended to try and force her to administer the program against her will," Fritz's chief of staff, Tim Crail, tells the Mercury.
Hull Caballero has two chief qualms: Since candidates for auditor could qualify for public financing, a situation could arise where Hull Caballero or another sitting auditor is scrutinizing a challenger's campaign finances (or their own). Fritz's proposal also says disputes within the system would be decided by hearings officers who are appointed by the auditor. That could create an appearance of a conflict of interest.
Fritz and Hull Caballero's offices have communicated on and off about the public financing idea for six months, but the auditor says she never got a sure signal that Fritz was looking to base the system in the auditor's office.
As recently as two weeks ago, Fritz's staff was circulating a copy of the proposal that had "TBD" (to be decided) in spots of the policy that now say "auditor." Still Hull Caballero wanted to re-iterate her aversion to managing the program.
She sent Fritz an email on Tuesday, October 18, that read in part:
"Now that I have more information about your plan for the campaign finance proposal, I'm writing to confirm that placing the program in the Auditor's Office is not an option. While I am supportive of the concept of publicly financed campaigns, my office does not have the capacity to manage what you are proposing.... As I told you when we met in April, I do not have the staffing I need to accomplish the priorities I have for this office. I am in no position to take on the implementation of a new, high-profile, complex program..."
Hull Caballero also reiterated a request that her staff had made: That Fritz scrub reference to her hearings officers from the proposal.
Fritz replied a day later, writing merely: "Thank you for this information."
Yet when Fritz's office submitted the version of its Open and Accountable Elections for formal consideration earlier this week, the "auditor" had been given all responsibility for managing the program, and the role of hearings officers remained unchanged. Hull Caballero says Fritz never spoke to her about that move, but that Fritz's office has suggested the auditor's office is merely acting as a "placeholder" until another administrator could be found.
"Commissioner Fritz could be the placeholder," Hull Caballero says. "I view this as a violation of the charter and the boundaries of this office."
Crail says the concern is unwarranted. He points to an 11th-hour tweak of the definition of "auditor" under the law—a change made at Fritz's suggestion. The law now defines the auditor as "the City Auditor or his/her designee, and includes any individual or entity with whom the City contracts to administer and enforce this Chapter or a portion thereof." That's loose enough to account for other entities that might administer the plan, according to Crail, a contention Hull Caballero doesn't buy.
"We are continuing to pursue options that do not involve the Auditor administering the program, and will not schedule a vote until we have made substantial progress in figuring out the solution to that question," Crail says.
He notes, though, that "supervision of City elections" is one of the auditor's duties. Hull Caballero says those duties don't extend to Fritz's proposal.
The city's charter lays out a series of core jobs the auditor is responsible for: conducting audits, supervising elections, keeping records, and certifying city officials. Beyond that, the charter says that "other duties as may be assigned by the Council with the consent of the Auditor..."
Hull Caballero says she never gave consent.
Fritz and her allies have been looking around for other options. Multnomah County officials confirm that they've been approached about overseeing the new elections system, should it pass. But for now, that looks like a non-starter.
"There is absolutely nothing that’s going to happen when we are facing the massive list of a general election," says county spokesperson Julie Sullivan-Springhetti. "Literally there is no bandwidth."
Tim Scott, the county's elections director, tells the Mercury he spoke briefly with Fritz's office in July.
"Since we don't have any role in campaign finance in Oregon we didn't have much to add to the conversation," Scott says. "I suggested that they discuss their proposal with the state."
Fritz's office has also looked into whether the city's Office of Management and Finance will take on the program. If neither OMF nor the county is willing to administer Fritz's policy, it might die on the vine.
Should an entity take on the election system, they'll have some new resources in order to implement it. Backers are promising an as-yet undetermined amount of money that could pay for staff to help run publicly financed elections. So far, though, discussions have centered around one full-time staffer, with an option to hire temporary help during elections. Hull Caballero says that's not enough.
The elections system Fritz is proposing is far different than Portland's "voter-owned elections" system, which proved susceptible to fraud and which voters scrapped by a narrow margin in 2010.
Candidates interested in participating in the program would agree to accept donations of no more than $250 per person, and to limiting their spending (a maximum of $950,000 for mayoral races, and $550,000 for city commissioner and auditor races). To qualify candidates would have to prove their candidacy is viable by collecting a set amount of donations from a set amount of voters—at least $5,000 from 500 voters for mayoral candidates, at least $2,500 from 250 voters for commissioner or auditor hopefuls.
Once they did that, the city would commit to paying $6 for every $1 candidates raise from individual donors, up to $50. That means a small $50 donation could be leveraged into $350. There's a limit on the amount of public funds candidates can draw, though. The policy maxes out at $760,000 in public funds for mayoral candidates (between primary and general elections), and $360,000 for city commission candidates.
Fritz says her proposal has the ability to cut runaway spending on city elections, and to force candidates to focus on meeting with a wide swath of people, rather than courting a small amount of well-heeled backers. But it faces skepticism from some members of city council, who don't believe there are problems with the current elections system.
More pressing, it's unclear that city council is willing to pass Fritz's proposal into law without first referring it to voters, since the city's first dalliance with publicly financed elections was voted into oblivion.