The New York State Democratic Committee just held a conference call to air allegations about robo-calls that may be happening in the 29th. According to the Committee's lawyer, Frank Hoare, the calls follow one of two patterns:
Hoare used the 29th as a specific example of a district where such calls were occurring. He was long on accusations and short on proof, though he did point out that this type of robo-calling strategy has been used by Republicans in the past.
Even if the calls aren't intentional hang-ups, they're probably illegal. According to federal statute, all robo-calls must clearly identify who's initiating the call at the beginning. The calls that have been recorded don't do that until the end. They begin with "Hello, I'm calling with information about [candidate name]". So, if what's happening is malfunctioning robo-call, instead of an intentionally devious one, part of the problem is that the call doesn't follow federal law.
Rochesterturning has a post that details what to do if you've gotten a robo-call like this.
The forecast for the Northern and Southern 29th has improved: no rain, partly cloudy, breezy, high 55.
One of the great things about this election is that nobody knows how it's going to turn out. I wouldn't be surprised by a Massa blowout, a Massa win, or a Kuhl squeaker. A Kuhl blowout would be a surprise, but even Bob Van Wicklin isn't predicting that.
I stick by the prediction that I made when I started this blog: this race is a bellwether. If it's a Massa blowout, or even a Massa win, I expect Democratic gains in both houses on the high end of analysts' predictions. If Kuhl wins, Democrats will control the House by a razor-thin margin at best, and probably won't control the Senate.
There are no national exit polls in House races, so we'll have to wait until the polls close to determine the winner. With New York's venerable yet reliable voting machines, returns come in quickly. The suspense will be over shortly after voting ends at 9 p.m.
The area newspapers are running turnout stories. The D&C makes the obvious point that this election is all about turnout, and the Star-Gazette reports that absentee ballot returns are up in Chemung County (versus last year's local election).
Political analyst Larry Sabato has posted his final New York House predictions. He calls all the close Western New York races for the incumbents. On the 29th, he says, "We cannot entirely rule out an upset, and we do believe at least one of these upstate New York districts will flip, but we can't bring ourselves to wager against Kuhl."
Rochester TV station WHEC has a story about how the Massa campaign uses "cyberspace", with Massa's MySpace page as the example. While it's true that Massa has a MySpace page, that just scratches the surface of the differences in the two campaigns' approaches to using the Internet. The Massa website is full of detailed information about the candidate's positions, solicits online fundraising, and is constantly updated.
Massa also posts a diary regularly on DailyKos, and that diary is replicated across a number of "netroots" sites like MyDD and the TPMCafe. I don't think those efforts will gain Massa many votes in the 29th, but they have helped him in other ways. One of the reasons that Massa has raised $800K from individuals is online contributions (often small, like $20) from readers of these sites. In addition, Massa's participation in the discussion threads on those sites has probably helped him sharpen his positions on some issues.
The Kuhl campaign's site does not solicit donations and is infrequently updated. Kuhl says:
What were doing is taking the old fashioned way [...] Taking the shoe leather on the street, right out to the people and saying hello.
It's not an either/or. For example, Reader Rich points to Massa's election-day schedule, which begins at 4:15 a.m. in Pittsford and ends in Corning at 9 p.m. That kind of schedule is typical for Massa, who's run a hard campaign on the ground as well as in "cyberspace".
What's Randy Kuhl doing tomorrow? I have no idea -- it isn't posted on his website.
Barring the discovery of one of the candidates in bed with a dead girl or a live boy, it's all down to turnout. Kuhl has the 72 hour strategy, and Massa has his grassroots network of volunteers. Both efforts pale in comparison to the weather.
The forecast for Tuesday is the same in the North and the South: High 55, showers possible. At this point, it looks like weather won't be an major issue.
Media coverage continues to increase in the South and stay pretty sparse in the North. The Steuben Courier, "Steuben County's Largest Free Newspaper", has a pretty good race overview piece. The Finger Lake Times covers the Massa and Spitzer visit to Canandaigua. And it's down to the wire, according to the Olean Times-Herald.
Reader Rich reports that Bill Clinton will be coming to Rochester on Monday to rally the faithful. Massa's Monroe County schedule hasn't been posted yet, but I assume he'll be there. Today, Massa will appear at a rally in Hornell with General Wesley Clark. The Kuhl campaign's celebrity is Amo Houghton, who will appear at a rally in Corning Monday night.
The Working Families Party has posted pdfs of three mailers sent (on 10/30, 11/2 and 11/3) in support of Eric Massa.
Massa has a new ad on Social Security - it's a "positive/negative" or "pivot" ad. It starts with photos of FDR, and Massa saying that he intends to keep FDR's Social Security promise: "I won't cut taxes or raise benefits on Social Security, and Randy Kuhl knows it." At the mention of Kuhl's name, there's a brief cut to black-and-white and a picture of Kuhl, but after making the point that Kuhl sponsored a bill to privatize Social Security, we're back in cheerful, colorful Massa-land. Video after the break:
The Rural Patriot reports that the Olean TImes-Herald endorsed Randy Kuhl in their paper edition. The endorsement isn't available from the paper's website.
Today's Elmira Star-Gazette has a race overview story that's pretty good, but starts with some errors. First, the subhead reads "Polls Show Kuhl, Massa Winning as Race Winds Down". Then it cites the Cook Report and Evans and Novak as evidence of the closeness of the race. Those aren't polls, they're political writers' ratings based on a number of factors including polls. In addition, they interpret the Cook Report rating [pdf], "leans Republican", as putting the race "solidly in Randy Kuhl's hands". That's not right . In Cook-speak, "leans" means a race where one party has the advantage but the race is competitive. Cook's rating for "solid" races is "solid", and the 29th hasn't been in that category since Cook started publishing ratings for this cycle.
The National Journal has dropped the 29th from 35th to 44th in their ranking of competitive house races.
29th district residents are besieged by an onslaught of direct mail and robo calls.
The Rural Patriot reports on a mailer that tells us how Eric Massa loves terrorists, hates the troops, and kicks his dog nightly.
Rochesterturning takes a look at the robo-call firm hired by the Kuhl campaign NRCC, and reports on a possible calling technique: late night fake Massa robo-calls.
Sanford Dickert, who was fired by the Massa Campaign after a short tenure as campaign manager, has created a website devoted to his legal case. It contains a huge number of documents, including court filings and supporting information.
Between his site and email conversations with Dickert, I've learned more than I've ever wanted to know about this dispute. In this post, I'm going to do my honest best to separate out the charges that are relevant to the election from those that are part of the employment dispute. Based on my review, there are three:
My conclusion: There's no solid evidence to support any of these claims in the mountain of paper released by Dickert.
Let's begin with a bit about the evidence presented by Dickert. He provides a number of documents that, to my knowledge, haven't been previously available to the media. These include the employment contract between him and the Massa Campaign, and the preliminary filings for arbitration between the parties.
There's a wealth of information here, but it's mainly in the form of allegations, not facts. Dickert includes some emails and campaign literature to support some of his allegations, but he generally points to the affidavits of some of his friends to support his reading of the case. The Massa campaign has yet to provide most of their side of the story, which I assume would include their affidavits.
In other words, we're at the beginning of a process, this discussion is premature, and the best evidence (except for the contract itself) is he-said/he-said. With that in mind, let's look at the charges that could be made against Massa that are relevant to his character:
1. Massa knew about illegal activity he should have reported.
Let's start with some background. Dickert is an adjunct professor at Cooper Union in New York City. When Dickert was hired by the Massa campaign, he apparently brought one of his former students and that student's friend with him as volunteers for the campaign. These two were 18 and 19 years old, and they quit the Massa campaign the day Dickert was fired. While in Corning, the students were housed in an apartment paid for by the campaign (at Dickert's suggestion, and perhaps without Massa's approval, though that's up for dispute). A third resident of the apartment was another college-age boy, and the fourth was a 25-year-old woman who also worked for the campaign.
In his affidavit, Massa alleges that Dickert provided alcohol for underage drinkers in that apartment. This charge is based on after-the-fact evidence: Massa and the landlord apparently found beer and vodka in the apartment after Dickert was fired. Dickert and the Cooper Union students claim the alcohol was purchased by the 25-year-old. What's important for this discussion is that the only evidence that Massa had was circumstantial, and it was discovered after Dickert and the students left town.
The second major claim is that Dickert asked Massa's 16-year-old son to stay the night in the guesthouse where Dickert was living. This charge is the least-well-documented of the whole bunch. As far as I can tell from my email correspondence with Dickert, this looks like some kind of misunderstanding between Massa and Dickert. My sense is that Dickert doesn't really understand how touchy parents can be about their teenagers. But Massa certainly doesn't allege that anything remotely illegal happened between his son and Dickert.
By the way, the newspaper stories don't mention that the 16-year-old was Massa's son, presumably because they don't print the names of minors involved in alleged crimes. However, it's clear in the now-public documents that Massa's son was the only 16-year-old involved.
Finally, there's the charge that Dickert solicited high-school boys for employment in the campaign. The affidavits from Dickert's students bear this out. The dispute is over whether he should have been doing it. Massa thinks it's illegal and says he specifically instructed Dickert not to do it. Dickert says it isn't illegal. The real issue here isn't the supposed illegality: Massa also contends that parents complained about Dickert's solicitations, which of course is poison to a campaign.
In addition to the possibly salacious (but actually fairly tame) allegations, there are a few charges about Dickert's lack of knowledge of Federal Campaign laws, but none of that rises to the level of anything reportable to authorities.
I should note that in my first post, I hadn't seen the documents and assumed that the liquor and 16-year-old story were somehow connected to a party (especially since some damage occurred at the apartment). That's not true, and I apologize for the error. The truth is actually less damaging to Massa - something illegal might have happened, but nothing that happened could be credibly reported to the authorities.
2. Massa's trying to get out of paying an obvious debt.
This brings us to the beginning of this whole mess: the employment contract. As an outsider, I have to read it as it stands, without the interpretation that Dickert and Massa attach to it. I'm not a lawyer, but I've been involved with negotiation of contracts far more complex than this one. I wouldn't have signed this contract. There should have been more detail around the termination section, and more discussion of termination in general.
Dickert's position is that the Massa Campaign owes him at least $39,000, plus a $50,000 win bonus if Massa wins the election. The campaign's position is that they owe Dickert a hell of a lot less than that, that he was terminated for cause, and that fraud is involved, since he misrepresented his resume.
I don't think we need to go into the nitty-gritty detail to determine whether Massa's ducking a bill. My take is that Dickert gets to $39,000 using some extremely optimistic arithmetic that includes damages that are called for by a state labor law of questionable applicability. In addition, the $50K is a no-go, because he was terminated for cause, and the contract says that he gets that money only if the termination was without cause.
Common sense doesn't have much place in a legal proceeding, but it does have a place in this discussion, since we're trying to see if Massa is trying to welsh on a debt. Dickert was employed for about six weeks, and actually worked for a little more than a month, since he took some unpaid leave. For his work, he expects between $39K and $89K, depending on how the campaign turns out. Clearly, Dickert didn't work out. That's got to be at least partially his fault, and his short tenure can't be the key to victory.
A reasonable person would not fork over potentially $89K for one month of work. This is a legitimate dispute, not a ruse to avoid payment.
3. Massa committed perjury.
This is the weakest accusation of the bunch. Massa's affidavit in this case was signed under oath, so if he lied in that document, he's a perjurer. The supposed evidence for this perjury is that Massa's account differs from three other affidavits filed in the case.
Two of the other affidavits are those of Dickert's student and friend. They deny a couple of the charges made by Massa, but these two only saw a little bit of the entire picture. In addition, they're clearly loyal to Dickert, having left the campaign the day he quit. At best, this is a difference of interpretation, not evidence of perjury.
The other affidavit is by the woman who recommended Dickert to the campaign. It addresses the issue of Dickert's inexperience. In my opinion, it's a straw man. Massa is charging that Dickert lied about leaving the Kerry campaign in 2004. The affidavit shows that Massa was told that Dickert was inexperienced -- it doesn't address the more serious charge of misrepresentation.
Perjury is just a non-starter in this he-said/he-said dispute.
My conclusion is that there's nothing here that would make a reasonable person change their vote. That doesn't mean that this whole mess won't affect votes.
I don't want to speculate about why this information was released less than a week before the election, but I hope we can return to the real issues of the campaign. This is a sideshow.
First the good PR: Randy Kuhl got some bill signing front page love with Governor Pataki in Corning, and Eric Massa got a sloppy wet kiss from the Elmira Star-Gazette.
Now, the good for one, bad for the other PR: The Rothenberg Political Report has rated the 29th "toss-up/tilt Republican", which I believe is a little more competitive than their last rating. The dispute between Sanford Dickert and the Massa campaign got aired on the AP wire late yesterday, and today's Democrat and Chronicle and Star-Gazette ran followups featuring Dickert's denial of Massa's charges. Also, I missed the Finger Lakes Times coverage yesterday, which was probably the most balanced of the bunch.