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In an email thread from mid-August, at least four Portland City Council candidates agreed to contribute to each other’s campaigns in order to reach the 250-donor threshold needed to qualify for matching taxpayer funds.
In other words, the candidates appear to have discussed gaming the system in hopes of obtaining tens of thousands of dollars in city money for which they might not otherwise qualify.
Two campaign finance experts, lawyers Dan Meek and Jason Kafoury, say that swapping donations appears to violate Oregon Revised Statute 260.665. A third lawyer, Steve Elzinga, who regularly handles elections cases, says the email chain “appears to show multiple election law violations.”
The law the three experts cite prohibits using “undue influence.”
It says “a person, acting either alone or with or through any other person, may not directly or indirectly subject any person to undue influence with the intent to induce any person to...Contribute or refrain from contributing to any candidate, political party or political committee” or to “solicit or accept money or other thing of value as an inducement to act as prohibited by subsection (2) of this section.”
In simpler terms: Candidate A cannot offer a $5 contribution to Candidate B on the condition that Candidate B gives Candidate A a $5 contribution in return, i.e., no quid pro quo contributions.
Violating the undue influence law is a class C felony punishable by up to five years in prison and a fine of up to $125,000.
The Oregon Secretary of State’s Office, which administers election laws, declined to weigh in on the legality of what the Portland candidates are doing.
“We can’t comment on any specific circumstance and whether or not it’s in violation of Oregon election law without having done a full investigation,” office spokeswoman Laura Kerns said.
The candidates who exchanged emails about trading donations between Aug. 7 and 9 include Chad Lykins, Michael DiNapoli and Michael Trimble in District 4 and Sam Sachs in District 2. Three others in the email chain, Theo Hathaway Saner, Kelly Janes and Thomas Shervey, invited donations from fellow candidates but did not explicitly agree to swap donations.
The email thread, obtained by WW, appeared to begin with an email from Hathaway Saner on Aug. 7.
He wrote: “I’ve been thrilled to receive support requests from several fellow candidates who are also aiming to hit the 250 donor mark before the deadline. My answer is always a resounding yes! If you need a lil’ boost to get there, please don’t hesitate to reach out.”
Lykins in District 4 wrote on Aug. 8: “I love to see folks on here supporting each other this way, and I’d love to see 1000 flowers bloom. Anyone willing to help me get to the next threshold by giving $5 gets $5 from me. If you can rassle a second $5 my campaign manager Jonathan will chip in too.”
Trimble wrote on Aug. 8: “Done Chad! Anyone else want to do a $5 contribution match?”
Sam Sachs, a gun violence prevention activist running in District 2, responded on Aug. 8: “I’m in. I’ve already donated to several candidates and they reciprocated. If we haven’t connected this way let me know or donate and once I see it, I’ll donate back. Good luck to everyone.” He wrote in a follow up email: “This is fun. Who’s next. Thank you everyone if I missed you let me know.”
On Aug. 9, Mike DiNapoli of District 4 wrote: “I’d like to echo the sentiments of many here—I’m still pushing hard and closing in on the 250 mark and would love to get the support of the collective. Anyone able and willing to support my campaign with a small dollar donation of $5 - $20, I would most certainly reciprocate the favor.”
Candidates had until Aug. 27 to qualify for at least $40,000 in matching taxpayer funds from the city’s Small Donor Elections program by showing they’d received 250 individual donations. The city would then match the small donations by up to a 9-to-1 ratio.
The August email thread shows that in the weeks leading up to that deadline, some candidates were talking about how to help each other over that finish line to receive taxpayer dollars. At least 36 City Council candidates have qualified for the $40,000 in city matching funds.
Susan Mottet, director of the city’s Small Donor Elections program, says that “contributions that were given in exchange for an item of value”—such as a $5 contribution in exchange for a $5 contribution—are not eligible for matching funds. But, Mottet says, it’s the responsibility of the candidate to not submit those donations as a matchable contribution.
Of the seven candidates involved in the email chain, only one qualified for matching funds: Lykins, in District 4.
In an email response to WW’s questions, Lykins says he and his campaign “go to great lengths to comply with city and state rules, and we have sought guidance from the Secretary of State and will take their recommendations,” he says. Lykins says he sought that guidance on Thursday afternoon.
Trimble took issue with WW’s premise that his willingness to swap donations would appear to be illegal. “’Would appear’ is not the same as ‘actually is,’” Trimble said in a text.
DiNapoli says he didn’t intend to violate any laws. “I didn’t know that an act of mutual comraderie and genuine support for other candidates would be considered a violation,” he says, adding, “I’m confident in saying that there was no ‘undue influence’ in being asked for support and/or lending support for any other candidate.”
Hathaway Saner, the only other candidate from the email chain who responded to questions, also says he did nothing wrong: “I want to clarify that my intention in contributing to various City Council campaigns was purely to support my fellow candidates and to foster a collaborative political environment. The donations made were not intended to influence or induce others to contribute to my campaign. I followed the guidelines as outlined in ORS 260.665, which prohibits the exchange of money or other valuables with the intent to induce contributions.”
None of the other candidates immediately responded to WW’s inquiries.
Kafoury, who along with Meek is one of the architects of local and statewide campaign finance reforms approved in recent years, says the candidates’ behavior shows a need for greater oversight.
“These are very questionable donations,” Kafoury says. “To me, what needs to come about are new rules for banning collusion between candidates, their campaigns and their agents regarding any public funding.”