Amanda Fritz commented as follows:

"Erik doesn't get the matching money over $150k automatically - he may request it. When Dan Saltzman reported raising a small amount over $150k earlier in the election, I chose not to file the match request."
[ Jack Bog's Blog: More "clean money" for Opie ]

To which I must comment:

Amanda,

You are not forced to spend any money you received. But you would apparently be required to pay 12 percent interest (on an annualized basis I suppose) on any unspent money that you return.

Suppose you intentionally broke the contract by raising private money but did so only to raise the money to cover the interest for money that you might plan to return.

You could even write a letter to the auditor to obtain clarification of that very issue. Your only option, it would seem, so as to avoid such an interest penalty is to personally bear that cost or face the arbitrary risk that the auditor might use it as a reason to demand the entire amount that was delivered. The perverse incentive is to spent it just so as to avoid personal costs or civil penalties and total return, with interest and penalty.

The Auditor could just as easily (as easily as I) have gone to court to try to obtain a declaratory judgment to put to rest the possibility that I might be right that my name should have been on the ballot and that I should have obtained pre-authorization to gather 1000 signatures.

One claim I intend to make is that all the risks regarding raising and spending of private and personal funds, even for purposes of returning dollars that a clean money candidate has received and already spent, can be no more stringent than that for non-clean money candidates. This would isolate on the issue only of transparency and exclude issues related to the business judgment (fair market value) of any expenditure. The specificity of the Auditor's claims, for example, against Ms. Boyles could thus be no more demanding than that for any transparent expenditure made by any non-clean money candidate such as Ms. Burdik or Mr. Saltzman. It would isolate nearly all forms of disparate treatment between clean money and non-clean money candidates except one, that is the violation of the voluntary agreement to not spend more than X.

The Auditor's decision to deny me the pre-authorization to obtain 1000 signatures and 5 dollar donations would foreclose any "standing" or "justiciability" based arguments to reaching the merits of even the 1000 signature requirement. That is, he cannot say that I do not have 1000 signatures and thus he can ignore me until I do. As he insisted on the claimed right to demand pre-authorization.

If you feel any sense of apprehension about asking for additional matching funds should you also feel any apprehension about spending any money that has already been delivered to you? I think you should.

It is in your self-interest to insist not that civil penalties be more restrictive but to insist that the Auditor's sole action against candidates, such as Ms. Boyles, be confined to a demand for the return of the money delivered; and to not insist on the 12 percent interest either. Suppose I obtain a judicial remedy that involves a remedy for the declaration that the scheme for delivery of public dollars is facially invalid and that your money and that of Mr. Sten must be returned. Would the 12 per cent interest be demanded? I do not think so. And it would not be applicable either from Ms. Boyles.

The Auditor could today still jump from his seat and insist that my name appear on the ballot. This would strike off one basis for me to go to court. The Auditor could today still jump from his seat and insist that Ms. Boyles do no more than return money that had been delivered and to strike out all his claims for civil penalties and interest. This would strike off the clean-money-specific claims that I could raise. These two actions would then enable the Auditor to assert that the extremely narrow window of time for me to seek an administrative remedy had expired. Otherwise, state law sets much longer timelines for my ability to obtain a remedy directly from a court, without pointlessly exhausting such procedural (though tactically and substantively offensive) "opportunities."

Just ask the City Attorney's office and the Auditor to obtain a copy of my letter in response to their refusal to place my name on the ballot and to refuse to allow me, free from violation of the clean money rules, to obtain my 1000 signatures. It is a public record, and I would not object. I agreed, in a signed document, not to spend more money than the amount the city would give me, and that is all that I need to agree to as a precondition to obtaining the money. If not, then you are not entitled to retain your money and must return it, exclusive of any interest rate penalty, of course.