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April 15, 2014
Eligible students and participants in the referendum voted to void the 4/15 JC decision by a vote of 307 to 109.
There is reason to believe, by size and amount of posters, that candidates overspent in the recent AAS Executive election.
Rule two of the AAS Constitution Article V Section 8 states, “Total campaign expenditures shall be limited to $30 for all campus positions and $15 for class positions. An additional $15 shall be allowed for each candidate in a runoff election. Contributions shall be included in this sum. Any campaign item promoting a candidate counts toward this sum. No reimbursement shall be granted without official receipts.”
As of now, there is absolutely no way to enforce this clause and hold candidates accountable for their expenditure limits. It says in rule one that “These rules shall be the ultimate responsibility of the individual candidates.” The clear intent of the rule is that “ultimate responsibility means candidates must not go over the limits. But it does not preclude the necessity of reporting those contributions. In fact, the ultimate responsibility must surely lie in the accuracy of reporting expenditures. As members of the student body can have no reasonable idea as to if candidates are staying within their spending limits, and lacking transparent reporting of campaign expenditures places an unreasonable burden upon the student body to report infractures, the clause can only be enforceable if the Senate Committee requires reporting of expenditures.
Remedy: Disqualification of any candidate who violated the rule, and a new round of elections.
Require the Elections Committee to force submission of financial statements in-between close of election polls and announcement of results
Joshua Ferrer ‘17
Pierre Joseph ‘15
In a vote of 3 - 1 - 1 (Bayimli dissenting, McKenzie abstaining), the JC ruled to dismiss the complaint filed and deemed the campaigns of all candidates in question to be legitimate and Constitutional. As pursuant to the Constitution, I did not vote in this deliberation. I have thus recommended to the Elections Committee to release the results of the Run-off election upon the delivery of this notification.
The original complaint filed reads, “There is reason to believe, by size and amount of posters, that candidates overspent in the recent AAS Executive election.” By Article V Section 8 of the Constitution, a candidate can spend a maximum of $45 total for both the initial election and the runoff election for Executive positions. The JC initially deemed the complaint valid strictly on the grounds that the matter was worth looking into.
The JC therefore held an open hearing on Sunday in which all candidates in question presented evidence of their compliance. According to the evidence submitted by each candidate. Only candidate Ahmed had approached the $45 limit with all had spent less than the $45 permitted. Candidate Ahmed alerted us in a separate conversation after the hearing that she had spent more in total than the $45, but had reported only $39 because she had never used the other posters she had printed.
In an email sent to the candidates in question, the JC stated that we would, to the best of our ability, verify all expenditures claimed. The way with which we had planned on doing this was to go to both IT and OAS to check how much each candidate had printed for their campaign. However, we were barred from doing this because of the Family Education Rights and Privacy Act (FERPA). To obtain their records, we would need to require all candidates in question to waive their rights guaranteed them by federal law. As JC Chair, I disallowed the JC from pressuring any candidate to waive their privacy rights - I believed that to do so would be a gross overextension of our power. Because of this decision, the JC had to rely on an honor system and trust in the truthfulness of the already submitted receipts to render our verdict.
The main issue before us, therefore, was to interpret the Constitutional meaning of “campaign expenditure.” McKenzie wished to interpret this as all printed material, because the JC cannot prove what was and what was not used. However, the JC decided that each student has the right to print posters and check the aesthetic quality of said poster in print before using them as part of the campaign. The JC also decided that since the Constitution does not strictly define the definition of campaign expenditure, the candidates may be free to interpret “campaign expenditure” as part of their “ultimate responsibility.” The JC decided that a fair public interpretation of “campaign expenditure” would be those materials used in their campaignsTherefore, the JC passed a motion 3-2 (McKenzie and Bayimli dissenting) to limit the definition of campaign expenditures to those campaign materials visible to the Amherst College community in public spaces for the purposes of this deliberation. The JC then passed a motion 3-1-1 (Bayimli dissenting, McKenzie abstaining) to dismiss the complaint as not fitting the definition of “campaign expenditure” voted upon previously.
The above was the majority decision of the Judiciary Council, below are two dissenting opinions.
THE ASSOCIATION OF AMHERST STUDENTS JUDICIARY COUNCIL
Chloe McKenzie ‘14, with whom Servet Bayimli ’16 joins dissenting.
I abstained from voting because I did not want to empower the definition that the Judiciary Council formulated based on the issue of campaign expenditure and its interpretation in the constitution.
I concur with Servet Bayimli’s ‘14 dissenting opinion, but need to offer my opinion on what the majority ruling does.
Here is what the majority opinion allows, that is how their opinion can function in practice and how “limiting” the definition actually broadens the definition in the following ways:
(1) The absence of temporal language allows candidates to print as many posters as he/she/they desire(s), to the extent that the candidate can break the $45 campaign expenditure budget, because only those posters seen by the Amherst College community and in public spaces are counted as a campaign expenditure
(2) As such, a candidate may spend more than $45, and then take down poster A from a public space and it replace it with another, poster B, that was not originally in a public space. But now, poster A, which was originally in a public space is no longer a campaign expenditure, because only poster B is visible to the Amherst College community and in a public space, given that poster A is placed in the candidate’s drawer or some other “private” space.
(3) This ruling also allows pro-rating. To this, the Elections Committee must determine what was visible to the Amherst College community and in a public space and determine the following reimbursements when receipts are submitted (Receipts only list the price of the materials that were printed, not that were visible and in a public space).
This ruling singles out students of lower socio-economic status, is a complete disservice to the student body more generally, and frankly is impractical (really it is impossible). I apologize to those students who will feel as though they belong to the side of the scale that was already unfairly imbalanced (hence why the constitution had the clause in the first place).
THE ASSOCIATION OF AMHERST STUDENTS JUDICIARY COUNCIL
Servet Bayimli ‘16, with whom Chloe McKenzie ‘14 joins dissenting.
Today the Judiciary Council (hereinafter “JC” [consisting of Joseph Kim ’14 (Chair), Allan Landman ’14, Chloe
McKenzie ’14, Liya Rechtman ’14, Servet Bayimli ‘16, and Birk Mitau ’16]) rendered ineffective the campaign expenditures portion of the AAS constitution. By dismissing the complaint alleging campaign overspending, the JC set the precedent that candidates may
spend as much money as they have on their campaign, so long as $15 dollars (depending on the type of election) worth of materials are “visible to the Amherst College community in public spaces.” (JC Ruling, Apr. 14, 2014)
To the poor, disadvantaged student living on full financial aid and excited to be at Amherst College where equal opportunity is supposedly a mission but cannot afford to print campaign posters in an attempt to engage in a Senate committed to “fair representation,” (AAS Const., pmbl.) - this decision is sickening. This decision serves as the badge for the notion that the AAS is as elitist as it is inefficient. Because of the glaring injustices inherent in this decision and for the following reasons, I dissent.
On April 9, 2014 the JC was served with a complaint alleging excessive campaign expenditures by candidates during the AAS Executive run-off elections. The complaint, filed by two Amherst students invoked Article V, Section 8, Clause 2 of the AAS constitution, which provides, “Total campaign expenditures shall be limited to $30 for all campus positions and $15 for class positions. An additional $15 shall be allowed for each candidate in a run-off election. Contributions shall be included in this sum. Any campaign item promoting a candidate counts toward this sum.” (AAS Const., Art. V, Sect. 8, Cls. 2.)
On April 11, 2014 the JC ruled the complaint valid and scheduled a public hearing to take place on April 13, 2014 at 7:20PM in the Morris Pratt Ballroom.
At the hearing, each candidate testified and submitted evidence to prove compliance with Article V, Section 8 of the AAS constitution. The JC then asked questions to each candidate, opened the floor to public comment, and then adjourned.
The JC met on April 14, 2014 to evaluate evidence and render a decision on the merits of the complaint. The JC needed to determine if any candidate spent over $45 over the course of their campaign in violation of Article V, Section 8, Clause 2.
After lengthy deliberation, Liya Rechtman ‘14 motioned to “limit the definition of campaign expenditures to those campaign materials visible to the Amherst College community in public spaces,” and in an 3-2 vote (McKenzie and Bayimli dissenting) the motion passed.
The JC then, by motion of Rechtman, moved to dismiss the complaint. Also by a 3-2 vote, (McKenzie abstaining and Bayimli dissenting) this motion passed and the JC session concluded.
Through the series of decisions the JC has made today, the principles of equal opportunity present in Article V, Section 8 of the constitution have been rendered null.
The JC erred by ruling “campaign expenditures” in Article V, Section 8 , Clause 2 to be limited to “those campaign materials visible to the Amherst College community in public spaces.” (see AAS Const., Art. V, Sect. 8, Cls. 2.)
The AAS constitution limits campaign expenditures to $30 for all campus positions and $15 for class positions,including an additional $15 for each candidate in a run-off. Within that sum, the constitution also includes contributions from other sources. Finally, “any campaign item promoting a candidate counts toward this sum.” (AAS Const., Art. V, Sect. 8, Cls. 2.)
To this, the constitution already expressly delegates what belongs to campaign expenditures: “any campaign” material promoting a candidate”. (AAS Const., Art. V, Sect. 8, Cls. 2.) To parse this language, McKenzie alluded to the definition of campaign and expenditure from the Webster Dictionary:
(1) expenditure -- the action of spending funds; an amount of money spent
(2) campaign -- (n) an organized course of action to achieve a particular goal.; (v) to work in an organized and active way toward a particular goal, typically a political or social one.
Bayimli then provided the definition found in Title 2, Section 431 of the Federal Election Campaigns Law to further parse the language and determine the ‘spirit’ of the clause:
The term “expenditure” includes--
any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office; and
a written contract, promise, or agreement to make an expenditure.
2 U.S.C.A. § 431 (West)
Given these definitions in comparison to the majority’s, the majority’s opinions fundamentally reject the fact that the aforementioned definitions more attentively and sensitively represent the spirit of Article V, Section 8, Clause 2. The definition is concerned with the intent of the actor and not the perceived effect of such action. Adhering to the definitions introduced by the dissenters delegates that candidates must all contribute equal amounts for the duration of the campaign regardless of how the materials are used. The majority’s definition recklessly and impossibly limits the amount of campaign materials that can be included in the campaign expenditure. In fact, this is not a limit on spending at all, rather it is a limitation on one’s ability to run for an AAS position.
The JC acted in bad faith when it refused to investigate legitimate allegations of overspending.
Immediately following the hearing that took place on April 11, 2014, the JC privately met in a room to discuss the hearing. During the meeting, at least one JC member questioned Amani Ahmed’s evidence and some JC members requested her to appear immediately in the private room JC was meeting in. Bayimli dissented with the decision to question Ahmed further since the public hearing had concluded.
The JC Chair asked Ahmed if she had printed any additional posters that were not submitted into evidence.Ahmed responded affirmatively and explained that she had printed fifty more posters, but opted not to use them. The JC Chair requested receipts and Ahmed complied.
The JC Chair went beyond his duties by making the executive decision that the JC ought not investigate the truthfulness of the evidence presented.
Because JC members were concerned about the possibility that all candidates did not submit every receipt for services rendered, Bayimli was selected to investigate. Bayimli contacted the Office of Administrative Services (hereinafter “OAS”) and IT for to confirm entered receipts. Bayimli was scheduled to meet with OAS on April 15, 2014 (the day after the JC was scheduled to meet and rule on the complaint), while IT refused confirmation invoking the Family Educational Rights and Privacy Act (hereinafter “FERPA”).
In light of objections raised by some JC members, the JC Chair ordered the JC cease investigation involving the validity and completeness of the submitted documentary record before the Council.
The JC Chair is charged with being the spokesperson of the JC, voting in a tie, serving on the Executive Branch, publishing JC decisions and agendas, attend Senate meetings, and selecting stand-by JC members. (AAS Const., Art. VII, Sect. 3) The AAS constitution does not empower the JC Chair with the authority to make decisions binding over the JC. When the JC Chair decreed that we will no longer investigate, he grossly overstepped his authority.
The constitution in fact authorizes the JC,
not the JC Chair, with the jurisdiction “over
any controversy arising under this constitution or the general bylaws of the AAS (including elections).” (emphasis added) (AAS Const., Art. VII, Sect. 4) Since the JC did not even have the opportunity to vote on whether it should test the truthfulness of the evidence presented, the JC Chair prevented the JC from exercising its authority.
When the JC cannot validate or test the truthfulness of evidence provided, it renders its primary goals defective.
The right to cross-examine evidence is one of the most important rights the Sixth Amendment offers us (see U.S. Constitution). It allows us to test the truthfulness of evidence so as to ensure a fair hearing. Since neither the candidates nor complainants were afforded the opportunity to cross examine each other, it was up to the JC to validate all information provided. So much so, that the JC Chair instructed Bayimli in an email to inform candidates that “JC will also conduct its own investigation to best of [its] ability [to] verify all expenses filed and not filed prior to issuing a ruling.”
To then turn around and abandon such an inquiry to the completeness of the evidentiary record and invoke an honor based code would avoid the reality that people withhold and forget information, especially in the adversarial process a JC hearing puts them in. As the safeguarders of the AAS constitution, the JC must ensure candidates are meeting the burden to establish compliance - and without the ability to validate information, the JC’s role is rendered meaningless.
Bayimli was intending to ask candidates to submit a copy of their entire printing record for a two week span, but the JC Chair and majority submitted that such an inquiry into the printing history of candidates would violate their rights under FERPA.
Like many rights, each individual has the right to invoke and waive certain rights. By being asked to furnish copies of their printing record, candidates would have the opportunity to invoke FERPA and deny the request or waive their rights under FERPA. The significance of this is clear when Article V, Section 8, Clause 1 of the AAS constitution provides that, “these rules shall be the ultimate responsibility of the individual candidates, including write-in candidates, who risk disqualification by non-compliance.”
When JC members question the completeness of the evidentiary record and it is the job of the individual candidate to prove compliance, the JC must have authority to, in the very least, request the complete records from the individual a second time. When such questions arise about the evidence, and JC does not do anything and accepts evidence for face value - one cannot say that such a judiciary body is acting in good faith and in the interest of fairness. JC opened the floodgates of excessive campaign spending since it refused to investigate receipts and evidence. Article V, Section 8, Clause 2 has been diminished to a clause concerning how much a student may get reimbursed by the Senate and not how much they are permitted to spend.
Ultimately, this ruling emerged from a heated and often times disorderly argument of the linguistic purpose of Article V. The linguistic battle is far from over because though the definition says ‘limits’, it broadens and obfuscates the little bit of clarity the constitution had prior to this decision. Mitau and Rechtman endlessly alluded to the invisible ‘spirit’
of the constitution rather than consider the intelligible purpose of Article V. The ‘spirit’ with which we must speak to is what is written and then to be interpreted in the constitution. As mentioned earlier, there are ‘spirits’ pointing to a more possible
and proper interpretation of campaign expenditure. As such, the ruling does not interpret the ambiguous language present in Article V, Section 8, Clause 2, rather it introduces language that never belonged to the constitution other than the phrase that energized
the linguistic battle over campaign expenditure. Put simply, the majority’s ruling is an amendment, not an interpretation of the language that exists and determined the validity of the complaint.
Chloe McKenzie ‘14 does a wonderful job in her dissenting opinion explaining the “big picture” ramifications of the JC’s decision. Today, the JC threw out the window the most important campaign rule found in the AAS constitution. It is one that ensures equal access and equal opportunity to all students regardless of their economic status. For one to print fifty posters for their campaign, but not post any of them still gives them a distinct unfair advantage over someone that may not have the economic means to do the same - a reality Article V, Section 8 was designed to prevent. The JC was so far off its mark in this decision, that the only way to salvage this grave error would rest in a constitutional amendment.