How Virginia Scrapped Its Ban on Personal Use of Campaign Funds

Onzlee Ware, who died earlier this month, was a former Democratic state legislator from Roanoke and the first Black judge appointed to the city’s Circuit Court.

But he also will be remembered as a footnote in an unexpected chapter of state history in 2009 that effectively eliminated Virginia’s longstanding ban on the personal use of campaign funds, a situation the General Assembly is still struggling to rectify.

The story began when Ware faced a Democratic primary challenge in June 2009. His opponent, Martin Jeffrey, pointed to entries on Ware’s publicly available campaign finance reports that suggested Ware had spent campaign funds for his own personal use, violating state law.

Ware ignored accusations while cruising to a 2-to-1 primary victory. But Jeffrey’s complaint had found its way to the State Board of Elections, which unexpectedly decided to open an investigation. There was no precedent for such an inquiry. Officials in the board’s campaign finance section previously had said their enforcement powers extended no further than asking candidates to correct mathematical errors or supply missing information such as donor addresses or occupations.

The day after the primary, David Allen, who had recently been hired to head up the campaign finance section, wrote to Ware demanding the Democratic legislator produce receipts and other documentation related to the spending in question.

In a recent interview, James Alcorn, then the State Board of Elections’ policy director, said the case went forward under the theory that because the agency asks for documentation in other types of enforcement actions, it has the authority to ask candidates for expenditure receipts. “When the complaint did come in against Delegate Ware, we had a responsibility to look into it,” Alcorn told The Roanoke Times in June 2009.

The Ware case alarmed lawmakers of both parties, who worried that the agency could become a pawn in politically motivated complaints.

Ware agreed to amend several of his campaign finance reports to include a more detailed description of some expenses, but he denied spending money for personal use. The Roanoke Times reported that Ware turned to Allen’s predecessor, Chris Piper, to help respond to the request. Piper was working for a Washington, D.C., law firm with a campaign finance compliance practice.

The Board of Elections eventually closed the investigation into Ware’s campaign spending but, in the process, called into question the applicability of language in the state code that banned the personal use of campaign funds for decades.

The meaning of the language leaves no doubt about the law’s intent: “It shall be unlawful for any person to convert any contributed moneys, securities, or like intangible personal property to his personal use or to the use of a member of the candidate’s ‘immediate family.’”

The agency turned to the state Office of the Attorney General for help. A lawyer there said the language was clear but discovered that its placement in the code had changed during a general reorganization of campaign finance laws approved by the General Assembly in 2006. Originally, the personal use language appeared in its own code section. But the reorganization placed it as a subsection of a law related to “final” campaign finance reports, which candidates submit when closing the account of a candidate’s fundraising committee.

The lawyer’s reading of the law, based on where the language appeared in the code, was that the prohibition against personal use applied only to the weeks or months before a candidate closed his account. In other words, personal use is not illegal in Virginia at all other times.

Based on that interpretation, the Board of Elections closed the Ware investigation without any further action in October 2009. Officials said that because Ware’s spending had not taken place within the timeframe of a final report, the agency was “barred by law” from looking into the matter.

A formal attorney general’s opinion to confirm that interpretation has never been requested. Still, the Board of Elections’ announcement led everyone in the political community to accept that Virginia effectively no longer prohibits personal use of campaign funds.

In the last 15 years, the General Assembly has been unable to put the genie back into the bottle. Legislation to reinstate a universal ban has foundered over how to define “personal use” without the potential for candidates facing complaints like the one an opponent lodged against Ware.

“I’m happy I went through the process,” Ware told the Roanoke Times in October 2009, “but I cannot sit here and tell you that I believe there was ever a legitimate concern … about my campaign expenditures. All of it was contrived and made up.”

by David M. Poole, Virginia Mercury

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