Worried About Russian Meddling? How About Looking at Our Own Courts!
Rep. Julio Gonzalez, M.D., J.D.
Rightly, Americans are worried about the use of dark money in our election process, money that flows from organization to organization (committees), without identification as to the source, and used for the purposes of supporting candidates or promoting certain campaigns.
Americans are also worried about the possibility of foreign governments, most notably the Russians, tampering with our election process.
But in August, without the knowledge of the overwhelming number of Americans, the federal judiciary skewed the flow of funds to some election campaigns while sparing others without forewarning, and with significant effects on the outcome of primary elections like the ones in Florida. So while some Americans worry about Russian meddling, a clearer case of election tampering from inside the United Sates just occurred.
The case, Crossroads Grassroots Policy Strategies v. Citizens for Responsibility and Ethics in Washington, et al, arose out of an incident in Tampa, Florida, involving none other than Karl Rove. Apparently, at a fundraiser sponsored by Crossroads GPS, Rove made an offer. He told those in attendance that an "anonymous donor" had offered to match up to $3 million in contributions to whatever contributions they made that night. The offer resulted in an extra $1.3 million being raised.
Shortly thereafter, another organization, Citizens for Responsibility & Ethics in Washington, D.C. (CREW) filed a complaint claiming that Crossroads GPS had failed to disclose the identity of those who had contributed to the event. Their logic was that the Federal Elections Campaign Act (FECA) required that persons disclose their identities when contributing to an organization intended to affect the outcome of an election. The Federal Elections Commission had interpreted the statute to mean that the identities of the persons needed only to be disclosed when they were made in support of specific independent expenditures. In other words, if the donor was only intending to support the overall efforts of the organization, then no disclosure needed to be made, but when the same donor contributed to the same organization with specific instructions that such funds be used to support a specific candidate the identity would need to be revealed.
In Karl Rove's case, the anonymous donor requested that the money go towards the support of the Republican challenger in the 2012 Ohio Senate race without specifying how the funds should be spent. For 38 years and 19 prior elections, the law had been interpreted in such a manner that those kinds of generalized instructions would not require the disclosure of the donor.
The complaint was filed with the Federal Elections Commission and in 2014, while acknowledging issues regarding the proper interpretation of FECA, the Commission tossed out the case because, in its opinion, the regulation did not require such a disclosure. The Commission was concerned that interpreting the law in the manner CREW was requesting would allow for a significantly more expansive interpretation of the situations by which donors' identities needed to be disclosed.
About four years later, the case reached the federal trial court where Judge Beryl A. Howell, an Obama appointee, ruled, on August 3, 2018, that the Commission's rule must be vacated because, in the court's opinion, CREW's interpretation was a more proper one. Howell recognized that this new interpretation could have a "chaotic" effect on the upcoming elections and therefore stayed her order for 45 days while the Commission revised its rule.
Immediately, Political Action Committees (PACs) across the country reacted with fear as the rules under which they were accustomed to working were being pulled out from underneath them, and they risked being forced to disclose the identity of their donors. Funding towards campaigns all over the country halted as the PACs figured out what the ruling meant and its significance to their donors' privacy concerns.
In Florida, the effect was profound. The Florida primary was scheduled for August 28, 2018, just 21 days later with early voting schedules beginning about ten days earlier. In accordance with McCain Feingold, candidates were busy spending their hard dollars as they jockeyed for position in the arena of public opinion. These candidates were also prohibited from communicating with the PACs that had issued commitments on their behalf, so they could not ascertain why the independent expenditures that they thought were coming by way of political ads, mailers, and fliers never appeared. What's worse, those PACs whose contributors were not concerned about the protection of their identities continued to spend without a care for the same judicial ruling that was paralyzing their competitors.
In the meantime, the Federal Elections Commission refused to change its rule despite the court's order since it was confident that the case would be overturned on appeal.
By August 24, with the Florida primary elections a mere four days away and the ruling disparately advantaging certain candidates over others, Crossroads GPS asked the Circuit Court of Appeals for an extension on the stay of Howell's order, but the appellate court refused.
On August 28, the Florida primary elections were held. The damage had been done, and the court had, either unwittingly or purposely, irreversibly affected the public's opinions of the various candidates throughout the state, and successfully interfered with the election process and its outcomes.
And so it was that an event taking place 6 years earlier impacted the outcomes of countless races in various states, but especially Florida, under the guise of being an administrative emergency.
It would not be until September 15, 2018, two weeks after the conclusion of Florida's primary elections, that the appellate court would issue a ruling upholding the lower court's actions.
Too late to affect the Florida primaries, but still hoping to rectify the situation, Crossroads GPS asked the Supreme Court to hear the case. On September 16, 2018, Chief Justice Roberts, acting alone, ordered that the rule remain in effect pending further orders, effectively reversing the rulings of the lower courts. But two days later, he reversed himself, apparently with the participation of the rest of the Court.
What does this mean to election finance laws? At least for now, it means more disclosures of federal campaigns donors. Of course, actions calling for greater transparency are helpful towards ensuring an open elections process, but it will also have a chilling effect of political speech, particularly when the status of the law is in a state of flux. The great injustice here is that a monumental shift in the interpretation of our nation's election finance laws was allowed to happen weeks before an election and three months prior to the midterms.
In other words, who needs the Russians to successfully meddle in our elections process when the courts can do it for us?
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and serves in the Florida House of Representatives. He can be reached through www.thefederalistpages.comto arrange a lecture or book signing.