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.

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.