Initiative profiteer Tim Eyman has pulled the plug on a website and series of accompanying video ads posted to Vimeo that excoriated dozens of Democratic Washington State lawmakers and urged viewers to “Vote Them Out!”
The ads, launched in mid-April, were financed by wealthy benefactors Clyde Holland and Kenneth Fisher, who each donated $22,500 to one of Tim Eyman’s committees to pay for their production. Records filed with the PDC show Eyman paid Campaign Grid of Pennsylvania $42,000 to make the videos. Eyman then paid Anne Norwood and Mark Dodd to place ads to promote the videos.
Last month, Washingtonians For Ethical Government (WFEG) — which I am a board member of — sent a letter to Attorney General Bob Ferguson and King County Prosecuting Attorney Dan Satterberg charging that the videos were an illegal independent expenditure because they weren’t properly reported and failed to include the required disclosure, “No candidate authorized this ad. It is paid for by…”
WFEG notified Ferguson and Satterberg of its intent to bring a citizens’ action against Eyman unless they took action against him first.
Ferguson’s office subsequently referred the matter to the Public Disclosure Commission. On Thursday, the PDC formally opened an investigation (Case 5729).
The takedown of the ad campaign appears to be an attempt by Eyman and his associates to shield themselves from liability. The NationBuilder website they put up is gone, while the videos published to Vimeo have been made private. Eyman has not promoted the videos to his followers since WFEG sent its 45-day letter.
Meanwhile, Eyman’s treasurer Barbara Smith has amended the March 2016 reports of the Eyman political action committee that paid for the ads, in what seems to be a halfhearted admission of guilt.
A text attachment to the amended March C4 report begins:
In-as-much as these ads ran prior to the date for filing for political office, we are not sure this meets the definition of independent expenditures, however, we report this as good faith effort towards full disclosure.
A good faith effort towards full disclosure would have involved studying the law and attempting to comply with it before doing any advertising. We have no doubt PDC staff would have readily responded to questions from Eyman, his treasurer, or their vendors about the rules pertaining to IEs. Or Eyman could have consulted with a veteran Republican operative like Kevin Carns (who enjoys commenting on progressive blogs, including this one and others).
It is completely irrelevant that the ads were launched prior to the date of filing for office in May. Timing does not come into play with respect to what constitutes an independent expenditure. According to the Public Disclosure Commission, the law defines an independent expenditure as follows:
- the ad supports or opposes a candidate for state, local, or judicial office;
- the ad is paid for by someone other than a candidate, a candidate’s committee or agent;
- the sponsor does the advertising completely independently of any candidate support in the ad (or the opponent of the candidate opposed), or a candidate’s committee or agent;
- the sponsor did not received the candidate’s encouragement or approval to produce the ad; and
- the ad costs at least $1,000, or the cost of the latest ad when combined with the cost of earlier ads supporting or opposing the candidate, totals $1,000 or more.
The ads launched by Eyman against most of Washington’s Democratic legislators meet each of the above criteria. They oppose candidates for state-level office. They are not paid for by any candidate. The advertising originated from a ballot measure committee, not an opposing candidate or their agent. It’s inconceivable that the sponsors had the approval or encouragement of the targeted candidates to produce them. And lastly, the cost of the ads was greater than $1,000.
The ads are not electioneering communications because they did not appear within sixty days of an election in the candidate’s jurisdiction, and they were not produced through radio, TV, postal mailing, billboard, newspaper, or periodical.
But they are independent expenditures, and should have been properly reported as such. Apparently, Eyman & Co. have now belatedly come to the same conclusion. But they’re still confused about what the law requires them to do– or at least their treasurer Barbara Smith is. Smith’s note goes on to say:
45,218 was divided equally among the 52 legislators. (869.58 each person).
We don’t agree with Barbara Smith’s claim that an equal amount of money was spent attacking each Democratic lawmaker.
Eyman’s vendor produced a set of twenty-one web video ads. $45,218 divided by twenty-one is $2,153.24. In some of the twenty-one videos, there were three Democratic lawmakers targeted. In others, just two, and in some, like the 5th Legislative District version attacking Senator Mark Mullet, only one.
WAC 390-16-063 (part of the Washington Administrative Code) contains a legally-binding discussion pertaining to prorating and attributing independent expenditures that support or oppose multiple candidates or a ballot measure.
(a) Prorating and attributing independent expenditures that support or oppose multiple candidates or ballot measures. Whether to disclose an independent expenditure that supports or opposes multiple candidates or ballot measures is determined by prorating and attributing the cost of the expenditure among all candidates or ballot measures that are the subject of the expenditure. Disclosure is required when:
(i) The pro rata cost for a single candidate or ballot measure reaches or exceeds the statutory threshold and none of the subject candidates are seeking election to the same office and none of the subject ballot measures are competing measures; or
(ii) The sum of the pro rata costs attributable to all candidates seeking election to the same office or the sum of the pro rata costs attributable to competing ballot measures reaches or exceeds the statutory threshold.
There can be no dispute that the majority of the twenty-one ads exceed the thresholds, because they target at most two candidates.
$2,153.24 divided by one is $2,153.24. $2,153.24 divided by two is $1,076.62.
Smith’s note concludes by listing out each of the lawmakers the campaign targeted:
The ad [campaign] recommends that voters oppose Washington State Senators Andy Billig, Steve Conway, Maralyn Chase, Jeannie Darneille, Cyrus Habib, Jim Hargrove, Steve Hobbs, Karen Keiser, Marko Liias, Rosemary McAuliffe, John McCcoy, Mark Mullet, Kevin Ranker, Christine Rolfes, Dean Takko, and Annette Cleveland.
The ad [campaign] recommends that voters oppose Washington State Representatives Derek Stanford, Luis Moscoso, Timm Ormsby, Marcus Riccelli, Brian Blake, JD Rossetti, Strom Peterson, Lillian Ortiz-Self, Sherry Appleton, Drew Hansen, Kevin Van De Wege, Steve Tharinger, Laurie Jinkins, Jake Fey, Christine Kilduff, David Sawyer, Steve Kirby, Christopher Hurst, Cindy Ryu, Ruth Kagi, Tina Orwall, Mia Gregersen, June Robinson, Mike Sells, Kristine Lytton, Jeff Morris, Judy Clibborn, Tana Senn, Hans Dunshee, Larry Springer, Roger Goodman, Pat Sullivan, Joan McBride, Patty Kuderer, Jim Moeller, and Sharon Wylie.
Smith may think she’s done her duty by filing an amended C4 with this note attached, but she hasn’t. Eyman & Co. are still out of compliance.
When a political committee pays for an independent expenditure for or against a candidate outside of the twenty-one days prior to an election, it’s supposed to promptly report that expenditure on its C-4 report.
(Ads that appear within twenty-one days of an election and cost at least $1,000 are supposed to be reported within twenty-four hours on a C-6 form.)
According to the Public Disclosure Commission, the purpose of a C-4 is to provide “a snapshot of a committee’s finances at a given point in time that includes total receipts, total expenditures, cash on hand, and debts. [The C4] also reports total receipts and expenditures for a prescribed reporting period.”
The instructions included with the C4 (PDF) state:
The question posted near the top of the first page of this form regarding independent expenditures applies to ALL POLITICAL COMMITTEES required to file C-4 reports, except ballot issue committees that neither contribute to candidates nor make independent expenditures regarding them and candidate committees (because they are prohibited from making expenditures that are not directly related to their own campaigns).
All other Political Committees and PACs must indicate whether they made any independent expenditures supporting or opposing one or more candidates for state or local office.
If the response is “yes,” the independent expenditure(s) MUST be itemized on the appropriate schedule (either Schedule A, or Part 3 of Schedule B), showing:
- the date of the expense;
- the name and address of the vendor or recipient of the funds;
- if using Schedule A, an “I” in the Code column;
- the name and office sought of the candidate supported or opposed;
- an indication of support or opposition; and
- a brief description of the expense (e.g., brochure mailed to absentee voters).
Emphasis is theirs.
Eyman’s “Bring Back Our $30 Car Tabs” committee is a ballot issue committee, but it isn’t exempt from these reporting requirements because its officers chose to launch an independent expenditure against state-level candidates. Consequently, the answer to the question “During this report period, did the committee make an independent expenditure (i.e. an expense not considered a contribution) supporting or opposing a state or local candidate?” should have been YES, and the IE should have been documented using either Schedule A or Part 3 of Schedule B.
As stated earlier, this has yet to be done.
The rules pertaining to independent expenditures are well-documented, and seasoned political operatives know what they are and how to follow them.
Tim Eyman has been in politics full-time for more than fifteen years. By this point, he should be very familiar with RCW Chapter 42.17A and its reporting requirements, especially since he’s gotten in trouble several times already.
But instead of making a good-faith effort to follow Chapter 42.17A, Eyman does as he pleases, operating as though the rules do not apply to him. It’s only when he has been caught breaking the law that his behavior begins to change.
The PDC has been more than patient and tolerant of Eyman’s sloppy, delinquent, and incomplete reporting over the years. Nothing seems to change. It’s time for Eyman and the gang to pay the penalty for their refusal to follow the law.