Anti-Cutler site may have violated law

Eliot Cutler
Eliot Cutler
Posted Dec. 18, 2010, at 12:03 a.m.
Last modified Dec. 18, 2010, at 1:11 a.m.

AUGUSTA, Maine  — The authors of a website attacking former gubernatorial candidate Eliot Cutler appear to have violated Maine’s campaign disclosure laws, according to a report from the staff at the Maine Ethics Commission.

The staff stopped short of recommending that the commission sanction the authors, whose attorneys have argued that the site’s anonymous political speech is protected by the First Amendment. As a result, it is unclear whether the identities of the authors will become public.

Attorneys for Cutler, an independent from Cape Elizabeth, contend that the site, www.cutlerfiles.com, was a professionally designed “character assassination” and that Maine’s campaign finance laws require the authors to disclose themselves and their funding source.

Through their attorney, the Cutler Files creators argued to the Maine Ethics Commission that they spent less than the $100 that would trigger a campaign finance report. And the site eventually included a disclosure.

The site was taken down shortly before the Nov. 2 election. Cutler lost to Republican Paul LePage by less than 2 percent.

On Monday, staff will present commissioners with the results of an investigation that found the authors initially failed to disclose who paid for the site and whether it was authorized by any campaign. Maine law requires such “paid for by” statements on any ads or communications that expressly advocate for or against a political candidate or issue.

“On its face, it appears there was a violation because the website expressly advocated against Eliot Cutler and the website did not contain a disclosure statement,” Jonathan Wayne, executive director of the commission staff, said Friday.

Despite the apparent violation, staff stayed silent on whether the site’s authors should be penalized.

“Nevertheless, at this time, the staff declines to recommend whether you should take any action in this matter because of the constitutional issues involved,” states a report released Friday evening.

The site’s attorneys have relied heavily on those free speech issues in their defense of the site.

Dan Billings, just named chief legal counsel to Gov.-elect LePage, is also the attorney representing the Cutler Files creators. Billings has argued that the authors’ identities should be protected and, to date, the commission has obliged. For instance, the names of the site’s creators were redacted from copies of a sworn affidavit made public earlier this fall.

But in a Dec. 15 letter to the commission, Cutler’s attorneys once again make a legal case for finding a violation occurred and for outing the authors.

“On behalf of Cutler 2010, and the future integrity of the electoral process in Maine, we request that the commission report the results of its investigation to the public, and that the commission take appropriate enforcement action against those responsible for violating Maine’s campaign laws in connection with the Cutlerfiles website,” wrote the attorneys, Richard Spencer and David Kallin.

The staff investigation determined two individuals were behind the site. The first was a male who conducted much of the research between August 2009 and February 2010. The second person edited the materials and created the website. Neither person was compensated for the work, according the staff report.

Wayne said it is the commissioners’ call, however, about whether to name the site’s authors if they determine a violation occurred.

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