Maine ethics board to investigate anti-Cutler site

Posted Sept. 30, 2010, at 10:13 p.m.

AUGUSTA, Maine — The Maine Ethics Commission plans to look into constitutional free speech issues surrounding an anonymous website assailing gubernatorial candidate Eliot Cutler before deciding whether the site’s creators have violated campaign finance laws.

Commission members made the decision Thursday morning after hearing detailed arguments on whether the authors of the site — www.cutlerfiles.com — should be required to identify themselves and disclose who has paid for the missives against Cutler.

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Dan Billings, an attorney representing the anonymous creators, compared CutlerFiles to any other blog or website where uncompensated authors share their political views.

Billings said requiring the creators to unveil themselves would violate their First Amendment rights — and likely trigger a potentially costly lawsuit against the commission.

“If you decide to move forward with this, this is something that will end up taking a significant amount of resources to pursue,” Billings told the commissioners.

But an attorney for Cutler decried the site as a “very carefully orchestrated political attack” that has all of the hallmarks of a professional political consultant well-schooled in “opposition research” and attack ads.

“This isn’t some 17-year-old blogger out there,” said Dick Spencer, representing the Cutler campaign. “It’s a political hatchet job the likes of which I have never seen.”

Launched more than a month ago, CutlerFiles attacks the independent gubernatorial candidate on a host of issues, among them: his wealth, his career at one of Washington, D.C.’s largest legal and lobbying firms, his work with Chinese companies and recent ties to a failed mortgage firm.

Cutler’s campaign says the site contains mostly distorted half-truths or false information and that the candidate has openly addressed many of the questions raised on the Web pages.

The site’s authors identify themselves only as “a group of researchers, writers and journalists” frustrated with what they claim is inadequate or biased media coverage of Cutler.

Maine’s campaign spending disclosure laws require any person or group that spends money to advocate for or against a candidate or an issue — including on “publicly accessible sites on the internet” — to identify themselves and-or their funding source.

That is why virtually all political advertisements in Maine carry the now-standard disclaimers at the bottom or end of the ad stating whether the communication was endorsed or not endorsed by a candidate or campaign.

In response to complaints from the Cutler campaign and queries from the Ethics Commission, the creators of the CutlerFiles have added a line stating that the site was not paid for or endorsed by any candidate.

But the site is still clearly intended to dissuade voters from casting their ballots for Cutler.

“He’s a phony and a fraud,” the site’s homepage states. “He’s rewriting and revising his history and profile to fit a carefully created campaign persona, fudging the facts and ignoring the truth.”

At the request of the Cutler campaign, Ethics Commission staff began a preliminary investigation into whether campaign disclosure laws were violated. Several commissioners said Thursday that the evidence suggests there is “probable cause” that a violation occurred.

But commissioners agreed with staff and the commission’s assistant attorney general that the constitutional issues needed to be vetted before proceeding full-bore with an investigation, especially considering the likelihood of a lawsuit.

Billings said none of the people behind the CutlerFiles site is compensated and estimated that total spending for the site would be roughly $30 by Election Day.

Billings also argued that, because virtually no money is changing hands, the site’s creators have the same right to anonymous free speech under the First Amendment as someone who donned a Richard Nixon mask and stood on a street corner with handmade signs denouncing Cutler.

“I think it’s interesting that Mr. Cutler, through his complaint and request for an investigation, has done more to promote the website than anyone,” Billings said.

But Spencer asserted that the site is little more than a professionally made “political attack ad on Eliot Cutler.”

“Somebody has spent huge amounts of money putting this together and had professional assistance,” Spencer said. “All we are saying is they should come forward and say who they are so that the public can make a decision about their interests” in the governor’s race.

The Ethics Commission urged staff and the assistant attorney general to quickly complete their research into the constitutional issues but did not set a firm date for a report.

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