Maryland Attorney General Douglas F. Gansler has agreed to allow state election officials to seek outside legal counsel rather than rely on his office for advice on a fundraising issue that could have a significant impact on the ticket of his leading Democratic rival for governor.
The State Board of Elections is preparing to issue guidance that is likely to determine whether the running mate of Lt. Gov. Anthony G. Brown (D) continues raising money during the 90-day legislative session that starts next month. This has become an issue because the Democratic primary is being held in June, several months earlier than in past election cycles.
Maryland law prohibits statewide officeholders, including Brown and Gansler, from raising money during the session. Members of the state legislature are also forbidden to raise money during the session, which means that Gansler’s running mate, Del. Jolene Ivey (Prince George’s), is subject to the ban as well.
There is no explicit prohibition, however, that covers Howard County Executive Ken Ulman, Brown’s pick for lieutenant governor. But Gansler and others have suggested that the law could be interpreted to prevent Ulman from doing so because he is part of the same gubernatorial ticket as Brown.
The situation highlights the kind of prickly issues that can emerge when a sitting attorney general becomes a candidate for higher office. In Virginia, unlike in Maryland, there had been a tradition of attorneys general stepping down when they ran for governor to avoid creating real or perceived conflicts of interest. But this year, Republican Ken Cuccinelli II broke with that practice.
A guidance letter already drafted by Maryland election officials takes the view that Ulman — and other candidates in similar situations — can raise money during the session as long as it is solicited for a campaign account separate from that of their running mate, said Linda H. Lamone, the state elections administrator. Before being released to the public, such letters are typically reviewed by lawyers assigned to the election board by the attorney general’s office.
Lamone said election officials asked Gansler’s office for permission to seek legal advice elsewhere because “it would be unfair to put Mr. Gansler in a position where he had a conflict.”
David Paulson, a Gansler spokesman, said his office sees no conflict but agreed to the election board’s request out of a sense of caution.
“There is no conflict of interest in giving this advice, and we are confident that we would be able to provide accurate, objective advice, as we always do,” Paulson said. “However, given that this question would appear to affect the current attorney general directly, the [office] has decided it would be prudent to allow [the election board] to retain outside legal counsel.”
Paulson said Gansler’s office had provided election officials with the names of four lawyers who are experts on state campaign finance law. He would not disclose the names.
The fundraising ban, enacted in 1997, is intended to limit the ability of moneyed interests to influence legislation.
Asked about the issue during a wide-ranging interview last month, Gansler said he believes that although not explicitly covered by the ban, a candidate such as Ulman is in a “pretty different” situation, relative to the law, as the official running mate of a candidate to whom the ban does apply.
“From an ethical perspective, it certainly raises ethical issues,” Gansler said. “Whether it’s actual corruption, appearance of corruption, actual ethical breach or an appearance of an ethical breach, I think the voters will have to make that decision, assuming it’s legally okay.”
Gansler stressed that he was offering a personal opinion and not “opining” on behalf of the attorney general’s office.
Justin Schall, Brown’s campaign manager, said Ulman intends to continue raising money during the session but will abide by whatever guidance the state election board offers.
Schall said he thinks that Gansler “did the right thing” by allowing the election board to hire outside counsel.
“This is why a lot of people were calling on the attorney general of Virginia to step down,” Schall said. “There are a lot of inherent conflicts. I don’t think this is special to Gansler, but it’s a challenge, given the office.”
The state’s elections administrator reports to the election board, whose members are appointed by the governor. O’Malley has endorsed Brown in the Democratic primary, which has a third declared candidate, Del. Heather R. Mizeur (D-Mongtomery).
Mizeur is covered by the fundraising ban but will be allowed to collect donations during the session because of an exemption for candidates participating in the state’s public financing system.
The interpretation of the ban on fundraising during the legislative session has not been much of an issue in recent elections. The earlier primary date has largely brought the issue to the fore.
The last time a sitting lieutenant governor ran for governor in Maryland was 2002. Like Brown, Lt. Gov. Kathleen Kennedy Townsend (D) chose a running mate who was not explicitly covered by the fundraising ban during the legislative session. But during that election cycle, the primary was in September, and Townsend did not name a running mate until late June, well after that year’s session had ended.