October 18, 2017

Paul Sagan was among those reticent donors exposed when Office of Campaign and Political Finance forced Families for Excellent Schools Advocacy to obey the law and disclose their donors. That has given Mr. Sagan a bit of trouble since he is also chairman of the state’s Board of Secondary and Elementary Education. His recent defense of his dark money donations is an exemplar of some good advice: when you are in a hole, stop digging.

Here is language important to Mr. Sagan’s case from his recent seven page letter, speaking of FESA (now banned in Boston):

To be clear, their disclosure responsibility is their business, not a donor’s. As a donor, I have no control over their disclosure obligations or practices. I expect them to do what’s right under whatever regulations they operate under.

It’s true that the disclosure requirement falls on the organization. FESA violated that and got the death penalty. But a donor does have the responsibility to make sure that he or she does not make a donation for the “purpose of disguising the true origin of the contribution.” There are OCPF regulations in 970 CMR 1.22 that apply to the responsibilities of the individual donor, so let’s take a look at them.

(6) No organization or individual may directly or indirectly make a contribution or independent expenditure, or an electioneering communication, in any manner for the purpose of disguising the true origin of the contribution, independent expenditure, or electioneering communication.

(7) If a donor to a tax exempt or other organization knows that a payment or thing of value it provides to the organization will be used to make a contribution or an independent expenditure to support or oppose a Massachusetts candidate or ballot question, or an electioneering communication referencing a Massachusetts candidate, the full amount of the donor's payment or donation to the organization shall be disclosed . . . For purposes of 970 CMR 1.22, a donor "knows" that a payment will be used to make a contribution, independent expenditure, or electioneering communication, if the donor makes a contribution in response to a message or a solicitation indicating the organization's intent to make a contribution, independent expenditure, or electioneering communication, or if other circumstances, including the timing and context of the donations, indicate that a donor knew that the payment would be used for such purpose.

Did Mr. Sagan know the contributions he was giving to FESA would be used to make a contribution to support Question 2? Here’s what he wrote:

In March of 2016 I requested an opinion from the State Ethics Commission relating to contributions I was considering making from personal funds to organizations associated with efforts to raise the statutory cap on charter schools in Massachusetts by various means, including legislation or a ballot question.

Several paragraphs earlier, Mr. Sagan wrote:

I was familiar with those groups (the groups to which he made his donations, including FESA) well before Question Two was even placed on the ballot. I knew their leaders, they asked me for financial support, and I gave them some.

Maybe he didn’t know the underhanded FESA would be hiding the money?

I have been criticized for not making a voluntary disclosure of my donations ahead of any disclosure by the organizations themselves. I did give careful consideration to making such a disclosure—to simply announcing that I had made donations to two organizations that supported lifting the statutory cap on charters. But I decided not to do so.

Why? On balance, I thought that if I went ahead and announced my donations, opponents of Question Two would accuse me of using my position as chair of the board of Elementary and Secondary Education as a platform to help influence support for expanding the statutory cap on charter schools.

What matters here is if Mr. Sagan made his contribution “in any manner for the purpose of disguising the true origin of the contribution.”

On that we’ll have to take him at his word.

The Washington Post recently adopted a new slogan: “Democracy dies in darkness.” I agree.

[Full disclosure: as an educator in the UMass system, I am a union member. I write about dark money (and other things). I don't write about education policy.]

Office of Campaign and Political Finance, dark money, Paul Sagan, Families for Excellent Schools

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