Opinion | When should investigations into political candidates become public?

While it’s impossible to know whether this episode cost Ms. Silverman her reelection, the case raises some thorny questions: What are the rules for government bodies when it comes to surfacing charges of candidate wrongdoing late in a campaign? How do authorities balance the need for voter information against the risk of unfairly tarnishing candidates?

In Ms. Silverman’s case, it seems clear that D.C. officials got this balance wrong — and that this Editorial Board was too definitive in its assessment that the campaign office’s rebuke would be the final word on the law. At this point, the most productive course is to use Ms. Silverman’s case to spur thinking about safeguards in D.C. and beyond. As campaign regulations become ever more complex, city, state and federal officials should prepare to face similar dilemmas.

The action against Ms. Silverman stemmed from her questionable intervention in last summer’s Ward 3 Democratic primary race, in which she was not a candidate. Ms. Silverman spent public campaign money, which was supposed to be used exclusively on her reelection race, to commission a poll of the Ward 3 battle. The Office of Campaign Finance declared on Oct. 27, 2022, that her actions violated D.C. campaign finance regulations.

Ms. Silverman says that she was interested in the Ward 3 primary because of how it might impact her citywide reelection campaign, scheduled for nearly five months later. Her critics say that the poll was commissioned to undermine a candidate she opposed. The Board of Elections declared on appeal that there was too little evidence to support the campaign finance charge, overturning OCF’s judgment against Ms. Silverman — after she lost her Nov. 8, 2022, at-large race.

Given the board’s reversal of the campaign finance office’s ruling, Ms. Silverman might still have had to defend herself from questions about whether her actions were ethical — but not from an official finding that they were illegal.

One solution: Blackout periods

As this saga demonstrates, it is problematic that D.C. campaign finance watchdogs lack an election “blackout period” — one that prevents authorities from taking public action against a candidate right before an election. This is in contrast to other states, which have developed safeguards. Massachusetts, for instance, restricts the state’s Office of Campaign and Political Finance from referring serious election finance allegations to the state attorney general within 120 days of an election. New York City, which runs a public campaign finance program similar to D.C.’s, does not assess penalties against candidates until they conduct post-election audits.

Other governments opt for transparency. California’s Fair Political Practices Commission spokesman Jay Wierenga said that California officials try to conclude election-related investigations before Election Day, allowing voters to consider the results before casting ballots.

The U.S. Justice Department takes a compromise approach. DOJ policy commands prosecutors to consult the Criminal Division’s Public Integrity Section before taking investigative steps, bringing charges or doing anything else that might appear to favor or disfavor a particular candidate “near the time” of an election.

Though Justice’s model is appealing, the department is steeped in a tradition of political noninterference, with a whole section available for prosecutors to consult when they must make tough choices. D.C.’s Office of Campaign Finance, by contrast, is a small agency applying the city’s new campaign finance rules.

This is why the office should adopt a blackout policy that would set a clear, high bar for pre-election public disclosure, allowing it only in exceptional circumstances during a defined period of time before Election Day — perhaps starting a week before early voting begins. Moreover, the D.C. Council should write rules that hold the release of penalty announcements until the Board of Elections has reviewed them.

Elections are chaotic enough without the last-minute intervention of government officials who should strive to remain out of the political fray.