Who’s Money Is It Anyway? Can Gonot, Rivera Steal From Themselves?
BY SAM FIELDS
Guest Columnist
There is a basic and obvious principle of law which says you cannot steal from yourself. Therefore, no matter what you do with your money you can’t be arrested for stealing without the consent of the owner–since you are the owner.
I bring this up because former Deerfield Beach City Councilman Steve Gonot and current United States Congressman David Rivera, R-Miami, are respectively in trouble for doing exactly that.
The center of both cases involves taking “THEIR money from “THEIR campaign accounts and using it for “THEIR personal reasons.
I am not talking about filing false campaign reports, which Gonot is also accused of doing. That’s a different story and that’s a different, valid crime.
What I am talking about is prosecuting people for taking “their money out of “their own campaign checking accounts and using it for themselves.
Campaign contributions are gifts to candidates for office. It was not long ago that it was unaccounted for cash stuffed into the pockets of pols.
The only purpose of these modern laws is to make public who is giving money and where it is going.
There is nothing in the laws says the ownership of the gifts has shifted to some third party. The requirement of campaign checking accounts doesn’t change the ownership of the money anymore than your checking account gives the bank an ownership interest in your money.
At most campaigns are sole proprietorships with the candidate as the sole proprietor, aka “owner.
Nothing less than the Internal Revenue Service says the candidate is the one and only owner of the money.
That’s why Congress had to write a law exempting campaign contributions from being taxed as income to the candidate. If it was not the candidate‘s money why did Congress need to write such a law.
If that seems farfetched consider this. Candidates who collect sizable sums of money often put it in interest bearing accounts. Notwithstanding that the interest goes back into the campaign account and is spent in the campaign, the candidate must still pay income tax on it.
The reason is simple. Congress forgot to include interest when they wrote the law exempting initial contributions as taxable.
If it was not the candidates money why would he be required to pay the income tax on the interest it earns?
Could there be a theft by fraud case if contributors were told the money was going for the campaign and it was used for wine, women and song? I suppose so. But such a prosecution requires a complaining witness and as far as I know no one who gave Gonot a dime has filed such a complaint.
I suppose this theory of the law sounds like a license for politicians to self-indulge. I suppose it is. But we have a way to revoke that license.
It’s called the ballot box.
May 4th, 2011 at 11:24 am
Sam;
Wait.
The folks that contributed to Steve Gonot gave cash to put him in office, not to pay for his divorce lawyer.
May 4th, 2011 at 11:30 am
I’d like to know if Fields’ theory would affect the conduct of future investigations? If a candidate taking money from their own campaign is not illegal, would authorities ignore such complaints and not start investigations which now find more serious violations?
May 4th, 2011 at 11:42 am
Chaz
if your alleged victims don’t give a crap then it’s not anyone including cops and prosecutors business. Or do you want the government to be the ultimate nanny
May 4th, 2011 at 2:55 pm
Sam, isn’t the state the “victim”, rather than the contributors?
Also, isn’t a a campaign “expenditure” money paid “for the purpose of influencing the results of an election or making an electioneering communication”?
So how is paying your mortgage, or a divorce lawyer, or for a restaurant meal at a ski lodge in another state, etc. etc. etc. an “expenditure”?
And how is it not per se misrepresentation when you are soliciting donations from people for your campaign to then use the money to pay for a back wax (unless you are attending a campaign event on the beach and need to be smooth).
May 4th, 2011 at 3:08 pm
The governing statute is fairly vague:
106.1405 Use of campaign funds.—A candidate or the spouse of a candidate may not use funds on deposit in a campaign account of such candidate to defray normal living expenses for the candidate or the candidate’s family, other than expenses actually incurred for transportation, meals, and lodging by the candidate or a family member during travel in the course of the campaign.
One would have to prove that the expenses are not for the campaign and are “normal living expenses” to be illegal.
May 4th, 2011 at 4:20 pm
If the money is the candidate’s than all the laws telling how to spend it are suspect to First and Fifth Amendment scrutiny.
All of these governmental rules about what is and is not legit are constitutionally questionable.
If a candidate thinks that $3000 suits will win him votes the last any of us should want is some Elections Commission second guessing.
If he thinks photo ops with Vegas hookers are part of his strategy than that’s what First amendment freedom is all about.
It would definitely makes for attention getting TV ads.
May 4th, 2011 at 4:24 pm
Never forget that George Washington bought the voters whiskey
FROM BUDDY:
I recall someone — Ken Jenne?– being accused of vote buying for giving voters bagels sometimes in the past.
May 4th, 2011 at 5:45 pm
Sorry Sam, LBR (Retired) called this one correctly.
It isn’t a slippery slope towards fascism or whatever you’re saying for the government/FEC, etc. to give some reasonable regulation as to what a candidate can spend money on.
The broadness of the statute on what a legitimate campaign “expenditure” is and also the prohibition against defraying normal living expenses would still allow most of those questionable things (vegas stripper pictures, or $3k suits, buying meals for voters, volunteers, etc.) while prohibiting the crap like paying your divorce lawyer or your mortgage.
May 4th, 2011 at 11:22 pm
Sam,
The legality of the issue aside- doesn’t the whole thing just reek of moral turpitude? To use one’s gifts that were intended for one thing ( campaign expenses-advertising,phones, etc ) and then use them for another ( be it divorce attorneys, hookers, or that 3K suit) isn’t that being a little…um…dishonest? Or disingenuous at least? But then again, this is Broward County,and Gonot and Rivera are merely denizens of Dante’s 8th circle….
May 5th, 2011 at 9:08 am
@Sam
Using your logic, then anyone who opens a campaign account can use it as a revenue stream. Problem with that is 501c status.
Those donations are tax deductible. Gonot stole and never paid taxes on them.
If you review Gonot’s past campaigns, there is a $500 donation (clearing out remaining war chest funds) to a non existent charity whose address is Gonots patents house.
Government needs to be a nanny here since most politicians are childlike
May 5th, 2011 at 9:48 am
Dear @Sam
Assume that Gonot had written the check to the divorce lawyer from his campaign account but he was the sole funder to his campaign account.
Is it still theft?
May 5th, 2011 at 10:04 am
Dear Chaz,
Campaign accounts are not 501(3)(c)
Until recently Congressmen could rollover their campaign accounts and retire with them. Any money taken out for personal use is subject to income tax.
Gonot may have tax issues but not theft and that’s all I am talking about.
May 5th, 2011 at 11:16 am
Sam, you raise an interesting question…
I recall a few years ago that the lawyer that ran for PD against Howard Finkelstein self-funded his campaign account with $200,000 (right before he got busted for cocaine possession at the Tallahassee airport going to the Elections office to file his qualifying papers).
During the campaign, he didn’t spend much money on campaign activity but spent money on his mortgage, his car lease, and personal expenses.
Since he “loaned” his campaign that money (and the campaign had an ability to pay it back), it may have been a technical violation of the law, but I don’t know.
However, your comment is more of a distraction than addressing the underlying issue. I believe Gonot and Rivera DID raise money from third parties, and did spend money raised “for the election of” themselves to office for things that do not qualify as an “expenditure” under applicable law and are instead the personal expenses that you are not permitted to use campaign funds for.
May 5th, 2011 at 12:25 pm
Sam
I’ve sat thru both days of the Gonot trial and paid witness to the lengths that his team has gone thru to hide the fact that Gonot got caught with his hand in the til.
Your propostion is hypothetical.
The law clearly states what those funds may be used for – and that does not includ paying your divorce attorney
We are led to believe he bought laptops. 8 months after filing the report. 2 high end laptops. BTW Gonot never once used his city supplied laptop in the 7 years he had it.
The point I made about the 501 wasnt clearly spelled out. Your point is that if his supporters didn’t care how he spent the money then hw should be given a pass. Therefore he would need to ask those contributors “can I use this money for whatever I want”? What if he buys drugs. What if he paid for a girlfriends fake tits.
May 5th, 2011 at 1:26 pm
@sam
The under, underlying issue is free speechand proerty rights. I have a more expansive than you
May 5th, 2011 at 4:52 pm
Sam, the underlying issue is a candidate representing that a donation is a contribution to the campaign to elect XXXXXXXX for XXXXXXXXXX.
We see it on the solicitation to every fundraising event (I’ve hosted and gone to many).
Given the statutory definition of a campaign “expenditure” and the citation by LBR (ret.), if you know you’re going to spend your donations on strippers and whiskey (or a divorce attorney or a backwax), good argument you’ve committed fraud.
Doesn’t matter that the money may somehow be “yours” once it is donated…You obtained the donations under false pretense.
It isn’t about free speech, it’s about taking people’s money for one purpose when you’re going to use it for another purpose.
It is, and should be a crime.
May 6th, 2011 at 7:31 am
@ Sam and Chaz
You confuse moral outrage with the law. If the people who gave the money are not complaining then by implication they have ratified what you see as the misuse of their money.
You and Chaz also keep talking about the law as if it has no Constitutional limits.
If you conclude that the money is the candidate’s property than it is subject to 5th Amendment property protections. Put another way the government can no more restrict him from paying for his divorce lawyer with his campaign account than it can restrict him from using his paycheck for the same purpose.
Constitutional freedoms should trump stopping sleezing behavior that has been criminalized by a nanny government.
It’s up to people like Chaz to use their media clout to expose sleezy behavior and let the voters decide at the next election.
May 6th, 2011 at 9:13 am
@Sam Fields,
You expressed the argumment much better than I. I am agreeing with you-get ready for a freeze over South Florida!