NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Saturday, June 11th, 2016

Tim Eyman takes down illegal independent expenditure attacking Democratic legislators

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.

Still from Eyman's illegal independent expenditure

The still above is a scene from one of the ads (the 21st Leg­isla­tive Dis­trict ver­sion) iden­ti­fy­ing can­di­dates by name and photograph.

Another still from Eyman's illegal independent expenditure

This still depicts the scene from the ads where view­ers are urged to “Vote Them Out!” This scene is the same in every one of the twen­ty-one ads. As the words above appear on screen, the ad’s voiceover intones: “Tell them you’re going to hold them account­able at the next election.”

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:

  1. the ad sup­ports or oppos­es a can­di­date for state, local, or judi­cial office;
  2. the ad is paid for by some­one oth­er than a can­di­date, a can­di­date’s com­mit­tee or agent;
  3. 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;
  4. the spon­sor did not received the can­di­date’s encour­age­ment or approval to pro­duce the ad; and
  5. 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.

It says:

(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.

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One Ping

  1. […] to the Pub­lic Dis­clo­sure Com­mis­sion and the PDC opened an inves­ti­ga­tion. Around the same time, Eyman took down the ads and their accom­pa­ny­ing web­site. Now it appears the PDC will be send­ing the mat­ter back to Fer­gu­son with a request to prosecute. […]