May 26, 2020
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Observers: Politics drive election complaints, but accusations serve purpose

Whit Richardson | BDN
Whit Richardson | BDN
Candidates for the U.S. Senate (from the right), Republican Charlie Summers, independent Angus King, and Democrat Cynthia Dill speak during an Oct. 9 debate held by the Portland Regional Chamber of Commerce. Moderator Chris Hall is on the far left.

AUGUSTA, Maine — Maine Democrats earlier this month alleged a Republican state Senate candidate improperly coordinated with a political action committee to funnel $73,000 into advertising targeting her opponent. The party filed a complaint with the Maine Ethics Commission requesting an investigation.

Last month, within days of the launch of independent Senate candidate Angus King’s first television advertisement, Republicans charged the former governor’s campaign of violating a federal provision governing political TV ads and filed a complaint with the Federal Election Commission.

And for the Maine Democratic Party’s three late-September complaints alleging incomplete spending reports and missing disclosure statements on campaign mail by Republican legislative candidates, the Maine Republican Party a week later filed five more complaints alleging violations by Democrats and their supporters.

The allegations of election-law violations are piling up at both the state and federal levels this campaign season, a common development in the weeks leading up to an election. And while few deny political motivations are behind many of them, election-law specialists say such complaints are a necessary part of enforcing campaign finance laws and keeping the activities of a growing slate of political actors in check.

“In a democracy, what keeps the different parties honest is the opposition,” said Marilyn Canavan, who served as executive director of the Maine Ethics Commission from 1988 to 1998.

State- and national-level data detailing the number of complaints and their sources are limited, but election observers say complaints from political actors alleging election-law violations by their opponents have been increasing in recent election cycles.

“I think a lot of people generally have a sense that it has increased over time as elections have become more contentious,” said Kevin Glandon, an associate at the Washington, D.C., firm Covington & Burling, who advises clients on election-law matters.

In federal elections, the fact that more organizations acting independently of political campaigns are now collecting and spending unlimited sums to influence elections creates the potential for additional complaints, Glandon said.

“When you have a tense race, and you have multiple avenues to engage in political activity, whether it be through the direct campaign, whether it be through 501(c)(4) advocacy organizations, super-PACs, regular PACs,” he said, “it certainly creates a situation where there are many opportunities for someone to object to what someone has done.

“There may or may not be substance behind it, but in a hot race there are a lot of moving targets,” he added.

Outside groups have poured nearly $4 million so far into the race for Maine’s open U.S. Senate seat this fall.

When the latest entrant, the nonprofit organization Americans Elect, started airing ads supporting King last week, the Maine Republican Party filed a complaint with federal election officials within hours alleging illegal coordination between the King campaign and Americans Elect. Republicans noted that Americans Elect — which has 501(c)(4) nonprofit status — listed Eliot Cutler, a candidate in Maine’s 2010 gubernatorial election, as a board member. Cutler also serves as one of nine state chairs for King’s campaign.

Independent groups are allowed under federal election law to raise and spend unlimited sums as long as they don’t coordinate their spending with candidates. A spokeswoman for Americans Elect called the Republican complaint “a PR stunt that has no merit” and provided a copy of Cutler’s June resignation letter.

In Maine elections, Canavan said she doesn’t remember campaign finance complaints being so common during her tenure as state ethics commission director. But when complaints were filed, she said, they came almost exclusively from political parties and others with a political stake.

Today, she said, “You have a whole lot more money coming in from out of state and a lot more independent expenditures,” she said.

An independent expenditure was the subject of the Democratic Party’s complaint earlier this month that alleged Sen. Nichi Farnham, R-Bangor, improperly coordinated with a political action committee to spend $73,000 on ads targeting her opponent, Democrat Geoffrey Gratwick.

Democrats noted that Farnham was listed as a principal officer and decision maker on the registration documents for the committee, the Maine Senate Republican Majority PAC. If Farnham coordinated with the PAC to air anti-Gratwick advertising, that would constitute an illegal contribution to her campaign, Democrats argued.

Farnham said she was unaware of the ad buy and that she no longer should have been listed as a PAC officer. Farnham, however, was copied on PAC communications as recently as June, and her husband was one of four individuals to contribute to the PAC during the last quarter.

While the matter won’t be heard before the Maine Ethics Commission until Oct. 31, Democrats widely publicized their complaint and gained press coverage, including in the Bangor Daily News. And within days of the complaint being filed, a political committee backed by Democratic-leaning groups started airing anti-Farnham radio ads detailing the Democrats’ complaint.

Beyond generating negative publicity for a political opponent, Glandon said, election complaints can also throw an opponent off stride because it takes resources — in the form of legal advice — to respond.

“If you reach a relatively low threshold, the short of it is that you probably need to respond when the FEC sends you a letter,” he said. “That typically will impose a cost.”

Politics are at play in many complaints, but the fact that parties are filing complaints means they are closely watching campaign finance filings that the law requires be made public, said Alison Smith, president of Maine Citizens for Clean Elections, which led efforts in the 1990s to institute Maine’s public campaign financing system.

“It’s important for the ethics commission to treat [complaints] seriously and let the candidates off the hook if there’s no substance,” she said. “Having the ethics commission deal with them in a fair and timely way is important.”

But because so many matters pop up in the final days before an election, they’re often not dealt with until after voting takes place. At the federal level, the Federal Election Commission says it took an average of 10 months to close 145 enforcement cases during fiscal year 2011.

While that’s too late to have an effect on the election in question, how an enforcement body like the Maine Ethics Commission or the Federal Election Commission ultimately deals with a complaint can clarify the rules for what’s allowed and what’s not in future elections, said Glandon.

“When you have these cases, I think it does help clarify things,” he said. “When you have an FEC advisory opinion, if they can reach a consensus, then I think it moves things along.”

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