Tuesday, November 26, 2013

FEC Dismisses Complaint Against Andrei Cherny; Stemmed From 2012 Arizona Congressional Primary Campaign

The Federal Election Commission ("FEC") announced this past week that they have dismissed a 2012 election complaint against Andrei Cherny, stemming from his unsuccessful primary run for Arizona's new 9th Congressional District.

The Arizona Republic just featured an article about Republicans trying to clear primary races, and noted that Arizona Democrats are less likely to have such face-to-face confrontations.  However, the FEC reminded us just this past Friday of a very recent Democratic tussle.  It announced the dismissal of a complaint filed last year against Democratic Congressional candidate Andrei Cherny in the heat of a three-way primary battle.  (Kyrsten Sinema won that battle and is now part of Arizona's Congressional delegation.)

Cherny was chair of the Arizona Democratic Party in 2011-12, and had personally paid for a poll to gauge his support in the upcoming scramble for the new district then being finalized by the Arizona Independent Redistricting Commission.  Four weeks before resigning, Cherny met with State Senator David Schapira and shared the results of the poll (which showed Sinema winning a 3-way primary, with Schapira and Cherny finishing second and third, respectively).

Once the Yellow Sheet Report reported on the January meeting in May, opponents quickly noticed that Cherny had not reported the polling expenditure in his quarterly FEC report.   A Democratic activist (Sharon Thomas) filed the complaint (with the FEC) against Cherny, calling the violation "serious".  (A copy of the Yellow Sheet Report item is attached to the complaint.)

Cherny's attorney responded with a variety of legal arguments (it was not a "contribution", no possibility of corruption, amount too small, amending report), and the campaign amended the report to show that Cherny had made an in-kind contribution of $2,500 for the poll.

For more than a year, the complaint sat untouched in the FEC's files, until its general counsel recommended that the Commission exercised "its prosecutorial discretion and dismiss this (low-rated) matter."  The report did agree that it was not an in-kind contribution when made because it was below the $5,000 "testing the waters" cap, but that Cherny did have an obligation to report it once he declared his candidacy.

The Commissioners voted 4-0 (one non-vote) at its October 21 meeting to accept the recommendation, and the file was made public one month later.

Cherny acknowledged to Arizona's Politics having received the news, but declined to make further comment.

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