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It's tough to be a campaign under scrutiny for illegal campaign contributions — investigations can take years, and even when they're over, true vindication is hard to come by.
And while the investigations grind on, any findings by the Federal Election Commission stay confidential until the entire case is closed, making it harder to clear your candidate in the public eye.
That's the situation faced by the team for U.S. Rep. Vern Buchanan, R-Longboat Key, as it battles attacks by Democrats such as a June 13, 2011, radio ad saying "his old business was caught illegally funneling over $60,000 in campaign donations to Buchanan to influence his election." (We've rated the ad Mostly True in a separate fact-check.)
But in a helpful turn of events, Buchanan's attorney recently managed to get approval to release two letters from the commission in a still-open case that say when it comes to Buchanan, the FEC will "take no further action."
That prompted Sally Tibbetts, Buchanan's spokeswoman, to put out a news release June 13, 2011, declaring the "FEC Vindicates Buchanan."
"The Congressman has been completely exonerated, as we knew he would be," it read. "These phony accusations have been exposed as dishonest and partisan attacks."
We wondered: Do the FEC letters really leave Buchanan "completely exonerated"?
The letters, from an attorney for the commission to Buchanan attorney Chris DeLacy, address a "matter under review," MUR 6054, which includes separate complaints that campaign contributions were illegally reimbursed by two Buchanan car dealerships. Buchanan had ownership stakes in Venice Nissan Dodge and Hyundai of North Jacksonville as at least some of those contributions were made, though he no longer owns either one.
The basic allegation is that dealership employees, business partners and their family members made contributions to Buchanan's 2006 and 2008 campaigns, then were reimbursed by the companies.
At Venice Nissan Dodge, two employees joined a complaint filed by a Washington group in 2008 against Buchanan and the dealership with the Federal Election Commission. Carlo Bell, the dealership's then-finance director, said the company's general manager pulled him into an office in 2005 with two co-workers and told them they needed to contribute to Buchanan's campaign for Congress. If they wrote campaign checks for $1,000, the company would reimburse them in cash. Bell, who said he was afraid he might lose his job if he refused, got the cash and wrote a check.
David Padilla, a finance manager at Venice Nissan Dodge, said he was told by another manager in 2005 that Buchanan needed campaign contributions, and "that anyone who made a contribution would get his money back plus additional compensation." He said he was told that all of the managers were being asked to contribute, but he refused.
In the case of Hyundai of North Jacksonville, the Buchanan campaign says it reported illegal contributions to the FEC. The commission went after the dealership and Sam Kazran, a minority owner who later bought out Buchanan's stake, for reimbursing employees and family members. The FEC now seeks a $67,900 fine from Kazran for the dealership's role. Whether Buchanan himself was involved in the illegal reimbursements is a point of dispute. Kazran says he was. Buchanan's team says he wasn't, and that the letters from the FEC show he has been "completely exonerated."
The first letter, from February 2011, says that the FEC had found "reason to believe" that Buchanan had violated federal law by knowingly receiving contributions that had been reimbursed by Kazran and Hyundai of North Jacksonville. But after considering circumstances, it had decided to "take no further action and close the file" as it related to Buchanan. But the letter provided no reason as to why.
The second letter, from March 2011, addresses "other allegations against Rep. Buchanan that were made in the complaint in this matter." The commission hadn't found "reason to believe" that Buchanan violated the law in those instances, and its decision to "take no further action and close the file" applied to them, as well. While the specific subject of the second letter isn't clear, Buchanan's team says the letter refers to the Venice Nissan Dodge complaint.
'No further action'
So, what does it mean that the commission won't take further action? Is that the same as being exonerated? Does it clear Buchanan from accusation or blame?
First a little background on the Federal Election Commission. No more than three of its six members, appointed by the president and confirmed by the Senate, can belong to the same political party. But four votes are required for the commission to act. That's supposed to "encourage bipartisan decisions." It also means the commission frequently splits along party lines and doesn't take action.
But it did get at least four votes to move forward against Buchanan in the Hyundai of North Jacksonville case, finding "reason to believe" he knowingly received tainted contributions.
Larry Noble, general counsel to the FEC from 1987-2000, says that was the first chance the commission had to say there wasn't sufficient evidence — it could have said it had "no reason to believe" a violation occurred.
Instead, the commission moved forward with a "reason to believe" finding, meaning it found the allegation credible enough for a full investigation. After the investigation, if it had decided there wasn't enough evidence, it could have found "no probable cause to believe" a violation took place.
If the FEC had found either "no reason to believe" a violation occurred, or, later, "no probable cause to believe" a violation took place, Noble said that would have been akin to exonerating Buchanan.
But it didn't. Instead, the FEC informed the Buchanan team it would "take no further action and close the file," which it could do for any number of reasons, including the difficulty or cost of determining whether a violation occurred or the likelihood the statue of limitations would pass, Noble said.
And those reasons won't become clearer until the FEC releases the case file after it closes the matter for the rest of the people named in the complaints. In fact, very little is clear until that happens, other than that the commission decided to close Buchanan's file without declaring whether it believed he did or didn't violate the law.
"'Take no further action' means they're not going to do anything else," said Mary Brandenberger, spokeswoman for the FEC. "It doesn't mean anything further than that."
Buchanan's attorney, Chris DeLacy of Holland & Knight, says that no matter what term is used, "the indisputable fact is the FEC reviewed the merits of the case and voted affirmatively and decisively to take no further action and close the file against Congressman Buchanan."
That may be true. But any details that may further clear Buchanan won't be independently verifiable until the full case is closed.
"We cannot comment on it at all till it's closed," Brandenberger said. "And I don't have record of it being closed."
Melanie Sloan, the attorney behind the group that brought the Venice Nissan Dodge complaint against Buchanan in 2008, says, "I wouldn't use the word 'exonerated.'"
"It's premature to make too many conclusions about what the FEC's going to find here," she said. "On Vern being exonerated, you just have to take his lawyers' word for it. ... There is nowhere where anyone with any authority has said that Vern Buchanan has been exonerated."
Tibbetts said the FEC has vindicated the congressman, taunting Democrats as she declared he had been "completely exonerated." But a review of FEC procedure and discussion with an attorney who was general counsel to the FEC for more than a decade shows that's not exactly the case.
It's true that the FEC has said it won't take any further action against Buchanan. And there may indeed be strong evidence in his favor in the confidential FEC case file — but that's not yet available. All we know now is that the FEC declined to make its strongest finding, that there was no probable cause to believe Buchanan violated the law.
In other words, Tibbetts' statement contained an element of truth, but ignored critical facts that would give a different impression. We rate it Barely True.
Editor's note: This statement was rated Barely True when it was published. On July 27, 2011, we changed the name for the rating to Mostly False.
U.S. Rep. Vern Buchanan news release, FEC Vindicates Buchanan, June 13, 2011
E-mail interview with Sally Tibbetts, spokeswoman for Rep. Vern Buchanan, June 16-21, 2011
Federal Election Commission, Filing a Complaint: Confidentiality, June 2008
Democratic Congressional Campaign Committee, New DCCC Ad Holds Representative Vern Buchanan Accountable For Campaign Finance Scheme, June 13, 2011
PolitiFact Florida, Ad claims Rep. Vern Buchanan's 'old business' illegally funneled campaign cash, June 24, 2011
Herald-Tribune, Lyons: Buchanan exonerated? Not so much, June 15, 2011
Federal Election Commission letter regarding MUR 6054, Feb. 7, 2011
Federal Election Commission letter regarding MUR 6054, March 1, 2011
Citizens for Responsibility and Ethics in Washington, CREW Files FEC Complaint Against Rep. Vern Buchanan, Aug. 19, 2008
Citizens for Responsibility and Ethics in Washington, complaint to Federal Election Commission, Aug. 19, 2008
Citizens for Responsibility and Ethics in Washington, Affidavit of Carlo A. Bell, Aug. 12, 2008
Citizens for Responsibility and Ethics in Washington, Affidavit of David J. Padilla, Aug. 19, 2008
Merriam-Webster, exonerate, accessed June 21, 2011
Federal Election Commission, About the FEC, accessed June 21, 2011
Federal Election Commission, Filing a Complaint: Initial Vote to Proceed (Reason to Believe), June 2008
Interviews, including by e-mail, with Larry Noble of Skadden, Arps, June 17-21, 2011
Federal Register, Rules and Regulations: Federal Election Commission, March 16, 2007
Interview with Mary Brandenberger, spokeswoman for the Federal Election Commission, June 22, 2011
E-mail interview with Chris DeLacy, Holland & Knight, June 20-21, 2011
Interview with Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, June 20, 2011
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