The explanations presented to members of the state Public Disclosure Commission last week didn’t pass the straight-face test. Commissioners weren’t convinced that a series of mailings critical of 13 Democratic candidates shortly before the 2010 election weren’t actually campaign hit pieces. And they didn’t seem to buy that the sponsors didn’t have to register as a political committee and report their activities.
The material at issue was created by a group called Americans for Prosperity-Washington. The state affiliate of a national organization founded by Charles and David Koch became active in March 2010, with former KVI host and current state GOP chairman Kirby Wilbur as state director. The state group was little known until last October when it sponsored handbills, mailings and newspaper ads attacking the incumbents in nine suburban districts — all in tight re-election campaigns. “Call Senator Eric Oemig and tell him you are tired of him ignoring the will of the people, raising taxes and irresponsibly spending our money,” read one. Others targeted Tami Green of Lakewood and Tracey Eide of Des Moines.
The PDC website contained no record of the group. Two complaints were filed last fall, both accusing AFP of violating state disclosure law. Not until November 2010, well after the election that saw four of the targets lose, did AFP file reports identifying itself as a grass-roots lobbying organization that spent about $30,000 the previous month. It took more than a year for the PDC staff to finish an investigation, partly because AFP lawyers in Virginia were not cooperative. After finally resorting to subpoenas to get information, the PDC staff finished its work and decided AFP had not violated disclosure law.
Slipped through loopholes
The mailings weren’t “political advertising” because they didn’t appeal for votes or contributions, according to the staff report. AFP wasn’t a political committee or an independent expenditure committee because the stated intent wasn’t to influence elections. And the hit pieces weren’t even covered by the broadly defined “electioneering communication” because none cost more than $5,000 (a legal threshold since cut to $1,000). AFP, it seems, had surfed disclosure-law loopholes in furtherance of a disturbing trend asserting political anonymity as a virtue.
“Had these communications come out after the election, before the session, I could buy that it was nonpolitical. This really is a guise, a disguise of some sort, and it looks like the law allows it,” said Commissioner Jim Clements, a former Republican legislator. But some other commissioners weren’t giving up so easily. “For me, the straight-face test is that these were political ads,” said Commissioner David Seabrook of Battle Ground.
Rather than exonerate AFP, commissioners ordered staff to get more information on whether AFP was really a political committee. If the mailings had been sent to likely voters rather than the general public, it might lead to the conclusion that they were intended to influence an election.
Wilbur told me a year ago that some of the pieces were hand-delivered to each house in an area. But the mailings were targeted at registered voters, and not toward all voters but toward independent voters who are most likely to swing close elections. Still, Wilbur said he felt certain he had followed the law. Wilbur did, however, acknowledge one possible misstep. As a grass-roots lobbying group, AFP-Washington was supposed to file when it formed. And for each month that it spent more than $500, or any three-month period that it spent more than $1,000, it was supposed to file again. So unless Wilbur and his deputy were working for free, and unless events such as a bus tour to Olympia and voter-education efforts cost less than those dollar thresholds, it appears they should have filed those monthly reports.
Did the PDC investigators look into this? Staff told commissioners it wasn’t raised in the Democrats’ complaints. Now, after a scolding from commissioners, a staff spokeswoman says the agency may broaden its investigation.