Preliminary Disclosure: I do not personally know either Tim Cullen or Robin Wynne. I don’t even know if I have ever met either one of them. I decided to vote for Tim Cullen before all of this debacle because several very close friends know him and supported him. I had no opinion, either good or bad, about Robin Wynne. The only thing I even knew about him was that he went to law school with my father-in-law.
UPDATED TO ADD:
FOR IMMEDIATE RELEASE
Contact: Joey McCutchen – firstname.lastname@example.org – 479-783-0036
Citizens Rally Against Special Interest “Dark Money” Tomorrow at State Capitol
Little Rock – A diverse group of concerned citizens, various community organizations and the legal community will gather on the front steps of the Arkansas State Capitol tomorrow (Thursday) at noon to voice concerns about the recent flood of anonymous “dark money” seeping into Arkansas judicial races. More details below.
WHO: Annabelle Imber Tuck, former Arkansas Supreme Court justice; Supreme Court candidates (invited), lawmakers
WHERE: Arkansas State Capitol – Front Steps. IN CASE OF RAIN, Old Supreme Court Room.
WHEN: Thursday, May 15, 2014 – 12:00 NOON
MORE INFORMATION:So-called “dark money” is being used by out-of-state special interest groups to funnel money into Arkansas judicial races, damaging the sanctity of the independent judiciary by giving the appearance that justice can be bought in Arkansas.
Campaign Finance Rules Non-Candidates Should Care About
If I’m being honest, when I hear “campaign finance” I pretty much just completely tune out, because, I mean y u c k, amirite? I think the only people who really understand the ins and outs of it (to varying degrees) are candidates and people trying to take down candidates (I’m looking at you, Matt Campbell).
I’m already bored. Let’s take a quiz:
When you hear that a political figure you don’t like has been caught messing up with campaign finance rules, you:
A. Bask in schadenfreude, while thinking, “Is anyone really surprised?”
B. Pat yourself and the back and begin fielding calls from reporters.
C. Frantically start calling people to check your campaign finance records.
D. Feel sorry for the candidate. It’s got to be pretty easy to mess that stuff up, right?
If you answered A: You are an honest person and we would probably get along. If you answered B: You are probably the Blue Hog Report. If you answered C: You are a politician or candidate for elected office. If you answered D: You are a liar or someone who has already been taken down by campaign finance drama (or both).
Do I Even Care?
Yes, unfortunately. There is a judicial race for Arkansas Supreme Court going on right now that has forced me to pay attention to this stuff. In case you are just really out of the loop, the race is between Robin Wynne and Tim Cullen (and really, if you don’t even pay attention to Supreme Court elections, I’m pretty surprised you read this blog, but carry on).
Before we get into that, let’s cover some really basic campaign finance rules.
Campaign Finance Contribution Rules: Cliffs Notes
It’s not even fair to call this Cliffs Notes version, because I assume the people at Cliffs Notes actually read all of the material before they boil it down and I’m not willing to do that, because tl;dr.
My first task was to figure out where campaign finance rules in Arkansas even come from.
It’s the Secretary of State’s Office! Who knew?
Here’s the link to the pdf of the rules, which are promulgated by the Arkansas Ethics Commission, in case you need to do penance for something or are having a hard time sleeping.
1) Contributions Over $50 Can’t Be Anonymous
2) A person can only contribute $2,000. A political party can only contribute $2,500.
3) Approved PACs can contribute to candidates, but have to be registered in Arkansas and meet certain requirements. They are subject to the same contribution limitations as people.
4) Records have to be kept of all donations and expenditures.
See, that wasn’t bad, was it?
The Recent Supreme Court Election Flare Up
As mentioned above, there are two candidates for Supreme Court racing against each other to fill the seat being vacated by Justice Corbin: Tim Cullen, an appellate lawyer and Robin Wynne, current judge on the Arkansas Court of Appeals.
LEAA Dumps $400,000 into Misleading Ads
Problems began when an out-of-state corporation, the Law Enforcement Alliance of America (LEAA), dumped an estimated $200,000 into ads, which began running on May 8, in support of Wynne. Pretty nasty advertising, I might add. The new estimate is $400,000 after even more money rolled in.
LEAA issued a press release that day stating:
“Today begins (LEAA’s) newest public education effort in Arkansas.” (emphasis added).
LEAA is the nation’s largest coalition of law enforcement professionals, crime victims and concerned citizens. For more than 20 years LEAA has worked to support common sense, tough-on-crime criminal justice policies at all levels of government; in a nutshell, we believe in many “traditional conservative values.” For example, LEAA disagrees with the ideas pushed by run-a-way ‘trial lawyers’ such as those saying child sex abuse is a “victimless” crime. (NOTE: Cullen is an appellate attorney and the case didn’t even allege sexual abuse.) We support tough, swift and severe punishment of criminals…. especially those who prey upon our greatest treasures, our children!
Note the language specially designed to make you side with them. I mean, who doesn’t think children should be protected?
Retired police officer and LEAA Executive Director James J. Fotis remarked, “LEAA’s members in Arkansas represent active and retired law enforcement from a variety of agencies as well as citizens for whom concerns about crime generally — and pedophilia specifically — continue to be a top priority.”
Funny that the LEAA has never interfered in Arkansas before, if they have so many Arkansas members.
The television commercial accuses Cullen of saying that child pornography is a victimless crime.
If that sounds illogical, it’s because it is and it didn’t happen.
The Case the Ad is Referring To
In 2006, Cullen was court appointed to represented a criminal defendant in an appeal (you can hear the Court thank Cullen in the audio of the oral argument). The defendant plead guilty to the charges: 1) possession of child pornography; and 2) attempted enticement of a minor. (Brief here, courtesy of Arkansas Times; listen to oral argument here).
Note: Cullen was appointed to represent the defendant by the Court of Appeals, the same type of Court which Judge Wynne sits on. (Correction: I earlier said it was the same court; Cullen’s case was before the 8th Circ. Court of Appeals, while Judge Wynne is on the Arkansas Court of Appeals).
It turns out the minor that he was attempting to entice was not actually a minor, but a police officer attempting pretending to be a minor in a chatroom on Yahoo! (why is it always Yahoo!?)
The defendant was given an enhanced sentence at trial. Cullen’s job was to appeal the enhanced sentence. At the time, there was no Arkansas law on enhanced sentencing for enticement when the person being enticed was not actually a child.
Which means that Cullen had an ethical obligation to make the best legal argument that he could. The same obligation that any attorney would have. The Court heard the argument and decided the enhanced sentence was legal. A question of law now answered.
The District Attorney even said, “We’re lucky it was a victimless crime.”
Boom. Job done. Defendant represented adequately, per the Constitution.
That Makes the Ad Completely Unfair and Misleading
The ad is below the belt kind of stuff that has lots of lawyers riled up, because it’s pretty unfair to accuse someone for LITERALLY MAKING AN ARGUMENT THAT THEY ARE ETHICALLY REQUIRED TO MAKE WHILE THEY ARE WORKING FOR FREE, BECAUSE A COURT TOLD THEM THAT THEY HAD TO DO IT.
“The idea of attacking someone simply for fulfilling the mandate of the United States Constitution to provide every accused person with a defense attorney is inconsistent with the nation’s fundamental values. The founders of this nation recognized that no person should ever stand alone when the government seeks to condemn, imprison, or kill a person. To suggest that one’s qualifications for the bench are diminished for having lived up to the ideal of the right to counsel is an ill-conceived line of attack.”–National Association of Criminal Defense Lawyers President Jerry J. Cox
This is a deliberate attempt to create a visceral reaction among voters who don’t understand the legal system.
Calls For Wynne to Repudiate the Ad
There has been widespread outcry for Judge Wynn to repudiate the ad, especially from the legal community.
According to Cullen, he reached out to Wynne to ask him to repudiate the ad, but
He refused to meet, he refused to talk on the phone, and he literally hung up on me.
That’s odd…why wouldn’t he repudiate it?
Wynne’s Campaign Releases a Tone Deaf Statement
Here’s the May 10 release:
For Immediate Release
Linda Napper (501)753-8280
The Judge Robin Wynne for Supreme Court campaign learned yesterday that an out of state organization, the Law Enforcement Alliance of America, had purchased television time to air two commercials. One commercial featured Judge Wynne and the second, the other candidate in the race.
“Neither Judge Wynne nor his campaign had any knowledge or involvement with this purchase or the subject matter of the commercials. We had produced our own campaign commercial that began running on the first day of early voting. Our commercial focuses on Judge Wynne’s experience and qualifications. We have run a positive campaign and will continue to do so,” said Linda Napper, the Wynne campaign’s consultant.
Errmm…okay, but where is the repudiation?
Attorneys called on Wynne to repudiate the ads:
“Robin, I look forward to your immediate repudiation of the out-of-state ad attacking your opponent for doing his ethically-required job defending a criminal defendant against pornography charges. Such unasked-for out-of-state support for your campaign, which contravenes principles of lawyers’ ethics, unfortunately pollutes your campaign’s integrity, in my humble opinion. Sincerely, Rob Leflar”
“I am waiting to hear Robin Wynne rebuke out of state ads that misconstrue a criminal case that Tim Cullen was appointed by a judge to defend a criminal on appeal. At my personal request, I asked Tim Cullen to reach out to Robin Wynne yesterday. Tim had already called him once. But as a favor to me, because I was convinced that Robin Wynne would condemn these ads, Tim called Robin one more time. I have been depressed all weekend because Robin would not meet or discuss the ads. Surely he is praying about it this weekend and will do the right thing ASAP. All of us as lawyers have been appointed by a judge to a case just like Atticus Finch was appointed to defend someone. We took an oath before God to do this as a service to the justice system – as a service to the Constitution and what our country’s founding fathers fought for. If the worst of us don’t have rights under the Bill of Rights, then no one has rights under the Bill of Rights. We have lived in a great country where everyone is entitled to a defense. That makes sure everyone has freedoms guaranteed under the Constitution. Now an out of state group of wealthy people condemn an Arkansan for doing his God given duty. Please encourage Robin Wynne if you know him to denounce these ads.” (Paul Byrd)
“Robin Wynne’s refusal to repudiate these ads suggests a high tolerance for bad ideas that eat away at the foundation of our legal system. That is a troublesome posture for a judicial candidate. Wynne’s conduct makes me think he should be kept far away from the bench.” (Dan Greenberg).
There is still no repudiation from Wynne.
I cannot figure out why.
Unfortunately, the chances that his repudiation would reach as widespread of an audience as the attack ad has is nonexistent. The damage has been done, so why not simply repudiate the ad and at least soothe the uproar this has caused in the legal community?
The implication from this refusal is that Judge Wynne stands by the content of the ad, which is even more troubling than the ad itself. Do you want a Supreme Court justice who is willing to benefit from advertising that attacks the very nature of the judicial system? I don’t.
Cullen Under Fire Now For Contributions From Nursing Home Magnate
The Arkansas Times has recently discussed contributions from various nursing homes to Cullen’s campaign. I discussed this issue with Cullen’s campaign manager, Andy Taylor, today.
Taylor said, “We’ve decided to accept any lawful contribution. We really can’t think of a way to turn away a contribution without creating the appearance of bias against any group. At least with contributions, voters can see who has donated money. Judges know when to recuse and the public can hold them accountable. With independent spending from out-of-state stealth PACS, who knows where the money comes from?”
But Where is the $400,000 in Attack Ads Really Coming From?
Good question. Let’s see, shall we?
The Law Enforcement Alliance of America was founded with funding from the NRA in 1991, while Congress was debating the Brady Handgun Violence Prevention Act. Police associations such as the International Association of Chiefs of Police had come out strongly in favor of the Brady Act, and relations with the NRA were strained after the NRA opposed a 1986 bill to ban “cop killer” bullets that can pierce body armor. So the NRA founded the Law Enforcement Alliance of America and claimed that it represented the “average cop”—who supposedly opposed gun-violence prevention.
Soon after it was founded in 1991, the Law Enforcement Alliance of America supported several lawsuits to keep cities and counties from banning assault weapons. In a 2000 California Supreme Court case, for example, the group opposed the sentencing of a 16-year-old California teen to a “juvenile camp program” after police searched his room while he was on probation and found a semiautomatic rifle with a “banana clip,” which can hold dozens of bullets. The supported cases, many of them in California, resulted in few legal victories for the Law Enforcement Alliance of America, in part because the U.S. Supreme Court had yet to the Second Amendment as an individual right—it didn’t do so until 2008. After these early legal setbacks, the organization turned its focus to electing judges.
What kind of organization is LEAA?
LEAA is Not Technically a PAC
LEAA is a non-profit 501(c)(4) corporation. It is supposedly non-partisan. It does not meet the requirements to be an Arkansas PAC. LEAA is what’s known a “Stealth PAC” that acts as a front to hide donors identities while funneling money into elections.
The Law Enforcement Alliance of America was one of the first “independent” groups to spend big money on state supreme court races. When the organization started running ads in judicial races in 2000 and 2002, some state regulators took action. The Commonwealth of Pennsylvania sued the organization for soliciting contributions in Pennsylvania without registering with the commonwealth, which is required by state law. The group conceded that it violated Pennsylvania law in its 2002 settlement with the commonwealth.
LEAA has/has had affiliated arms:
Law Enforcement Alliance Foundation, a 501(c)(3) fundraising arm for LEAA and
Virginia Law Enforcement Alliance
Where is LEAA located?
The LEAA headquarters are in Springfield, Virginia.
What Are the Issues LEAA is Involved With?
According to its website, LEAA’s issues are:
CRIMINAL JUSTICE REFORM
USE OF FORCE
They Don’t Really Represent Law Enforcement
It’s absurd to suggest that LEAA represents the law enforcement community,
said James Pasco, who is himself a retired Bureau of Alcohol, Tobacco and Firearms special agent and former executive director of the Fraternal Order of Police.
These two groups have worked together on a federal law that would have allowed off-duty, as well as retired police officers, to carry concealed weapons in any state. But on other issues, from state supreme court to attorney general races, Pasco says the LEAA does not represent America’s law enforcement personnel.
Who are the LEAA Members?
The answer is we don’t really know.
The IRS has designated the non-profit LEAA as “a social welfare organization.” Under this tax designation, the LEAA can legally “educate” voters about issues but, it cannot advocate for the election or defeat of a candidate. The IRS forbids such organizations from “direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.” When big money is the key to demolishing political opponents, the biggest advantage that any “social welfare” group like the LEAA enjoys is that it is legally allowed to keep all its donors, even the largest ones, hidden.
“A social welfare organization” like the LEAA is not supposed to be involved in politics, at least not full-time, according to the IRS website. “[A] social welfare organization may engage in some political activities, so long as that is not its primary activity.” Moreover, “any expenditure it makes for political activities may be subject to tax.”
According to LEAA, its membership is composed of active duty and retired law enforcement officers, crime victims, and other “interested civilians.” The website is suddenly under revision, but when I visited it a few days ago, the website proudly proclaimed that it would continue to fight for the anonymity of its members.
Stealthpacs.org has this list from LEAA’s website in 2004 (the website no longer features any officer names) :
||President (2004) 1
|James J. Fotis
||Executive director (2004) 2
||Member of the Board of Directors (2004) 3
||Member of the Board of Directors (2004) 4
|Joseph P. DeBergalis Jr.
||Member of the Board of Directors (2004) 5
||Member of the Board of Directors (2004) 6
|Rollin A. Kiser
||Member of the Board of Directors (2004) 7
|David G. Thompson
||Member of the Board of Directors (2004) 8
|Bryant G. Jennings
||First Vice President (2004) 9
||Legislative Director. (2002) 10
Ted Deeds, COO (signed the Pennsylvania consent decree in 2001)
Don Blankenship CEO of Massey Energy Company
In 2004, Don Blankenship funneled money through LEAA to unseat Supreme Court Justice Warren McGraw His opponent, corporate attorney Brent Benjamin, was the favorite candidate of big business and big coal. The company happened to be fighting off a major lawsuit headed to the West Virginia Supreme Court.
The Texas Case
LEAA was sued by a democratic plaintiff’s attorney who was a candidate for attorney general and a democratic defense attorney who was running for state legislator in Texas in 2004 for failing to disclose its members. The case was removed to Federal Court in 2006, but remanded back to state court the same year. LEAA was compelled to disclose its membership by the trial court and the appellate court. It then appealed that decison to the Texas Supreme Court (mandamus brief here).
The flier distributed against the prosecutor said: “Should criminal lawyers be given the chance to write Texas laws? Mike Head is on the side of convicted babykillers and murderers. He makes his money taking up for people accused of the most violent crimes–including the slaying of toddlers, double murderers and one brother slaying another. Feel safe?”
LEAA’s argument was that it did not qualify as a campaign expenditure because the term “campaign expenditures,” as used by the Texas Election Code, “includes only those expenditures that ‘expressly advocate’ the election or defeat of an identified candidate.” According to LEAA, running an ad claiming a candidate is “on the side of convicted babykillers and murders” is not actually advocating to defeat that candidate.
Yah, okay. Sure.
In January of 2014, the Texas Supreme Court ruled that the LEAA had to turn over copies of communications it had with outside groups as part of the discovery process. In re Law Enforcement Alliance of America Inc., case number 11-1012, in the Texas Supreme Court.
What are LEAA’s Political Activities?
The LEAA was one of the Top 10 outside “super spenders” in 2009-2010 statewide judicial elections, according to an October 2011 report by the Brennan Center for Justice at New York University School of Law. The LEAA spent $1 million on advertisements to help elect three judges to the Mississippi Supreme Court in 2012, according to the CAP study.
William Roth Jr. – incumb. (R) 44%
v. Thomas Carper (D) 56% *
Mailings criticized Carper.
Mike Eakin (R) 53% *
v. Kate Ford Elliott (D) 47%
In a 2001 Pennsylvania Supreme Court contest, a county judge ordered the LEAA to pull its ads (which praised a Republican candidate while painting the Democrat as soft on crime) because the group was trying to influence the election while avoiding campaign finance disclosure laws.The LEAA also was forbidden from soliciting contributions in Pennsylvania because it did not file paperwork proving it was a legal non-profit, the secretary of state’s spokeswoman said.
One of the ads the alliance ran on behalf of Justice Michael Eakin suggested that his opponent was soft on crime and had voted to overturn a murder conviction on a technicality. Justice Eakin, on the other hand, was described by the organization as “a patriot, a prosecutor and a tough-on-crime judge.” After the ad aired for 10 days, a judge ordered the Law Enforcement Alliance of America to stop running it because the group had violated Pennsylvania campaign-finance law.
Jerry Kilgore (R) 60% *
v. Donald McEachin (D) 40%
The advertisement portrays McEachin as soft on crime, particularly on bills related to “drug kingpins” and “sexually violent predators. Notes from a 2001 LEAA meeting obtained by CPI show that the Chamber provided support for LEAA ads in the 2001 Virginia attorney general race attacking Democrat A. Donald McEachin, who ultimately lost to Republican Jerry Kilgore.
Joe Birkett (R) 47%
v. Lisa Madigan (D) 50% *
$1.3 million, according to Madigan’s campaign.
A complaint was filed with the Illinois election board in response to LEAA’s reported $1.3 million in expenditures in 2002 touting the Republican candidate in an attorney general contest, while criticizing the Democratic candidate. The board deadlocked 4-to-4 on that complaint and a similar complaint over alleged electioneering communications of the American Taxpayers Alliance, another 501(c)(4) group. Meanwhile, the Illinois legislature has passed a law stipulating that independent groups spending more than $3,000 on communications mentioning state candidates’ names in the two months before elections must file disclosure reports.
LEAA’s ads touted Birkett’s experience as a prosecutor, criticized Madigan’s background, and criticize her father, House Speaker Michael J. Madigan, who assisted Madigan with fundraising.
David Adkins (R) 50%
v. Phill Kline (R) 50% *
In a Republican attorney general primary in Kansas in 2002, the LEAA came under fire for running an ad blaming Adkins for releasing a man who “murdered four people after his parole was cut short.” The suspect, however, had not been convicted. Five Kansas television stations pulled the ad. Republican Kansas Gov. Bill Graves called the ads “a shadowy political practice” and “the worst form of political speech.”
C. P. (Chuck) McRae – incumb. (None) 23% *
v. Jess Dickinson (None) 52%
More than $500,000
Ads attacked McRae for voting to overturn a murder conviction and for voting against the disbarment of an attorney charged with taking his client’s money. Another said Dickinson was “a friend of law enforcement.”
What was odd about the LEAA’s campaign against this sitting Mississippi justice, Chuck McRae, was that, unlike many previous targets of the LEAA, he was a proud gun owner and the LEAA had no beef with him about gun rights. However, many businesses and, especially, doctors opposed Judge McRae’s re-election, complaining that he was too plaintiff-friendly in his Mississippi Supreme Court decisions. The LEAA’s ads, meanwhile, attacked him that year for overturning at least one murder conviction, and for voting against the disbarment of an attorney charged with stealing money from his own clients.
Jean Carnahan – incumb. (D) 49%
v. Jim Talent (R) 50% *
TV ad, content unknown. Source listed Carnahan as the favored candidate but that is unlikely given LEAA’s history.
In the 2002 Texas case, the LEAA spent an estimated $1.5 million on TV commercials in 2002 that accused Texas attorney general candidate Kirk Watson of making “millions suing doctors, hospitals and small businesses” while the praising Watson’s Republican opponent for believing in “common-sense lawsuit reform.”
NOTE TO SELF: WHY WOULD A LAW ENFORCEMENT GROUP BE CONCERNED ABOUT SOMEONE SUING DOCTORS, HOSPITALS & SMALL BUSINESSES?
The LEAA also distributed direct mail pieces that said Democratic legislative candidate Mike Head, a criminal defense lawyer, was “on the side of convicted baby killers and murderers.”
Both Watson and Head lost their races.
Jim Hood (D) 63% *
v. Scott Newton (R) 37%
Spending on Contest: $686,000, according to Hood.
Different ads either criticized Hood or praised Newton.
West Virginia, 2004
The group was very active in unseating West Virginia Supreme Court Justice Warren McGraw.
Supreme Court Justice Randy “Bubba” Pierce, a “tough on crime” judge was elected to the court in 2008 after the Law Enforcement Alliance of America spent $666,000 on his behalf. Justice Pierce was elected after the Law Enforcement Alliance for America ran ads attacking his 2008 opponent, incumbent Justice Oliver Diaz. The alliance spent more on television ads in this race “than all the other candidates and independent groups put together.” The alliance’s ads said Justice Diaz was “voting for” both a rapist and a “baby killer,” referring to Justice Diaz’s dissents in two cases—one in which the majority refused to allow DNA testing and one in which he argued that the court should stay an execution pending a ruling from the U.S. Supreme Court. Some television stations pulled the ads because a state committee found the ads were false and in violation of state ethics rules. In an interview, Justice Diaz said the alliance’s influence in Mississippi is “massive” thanks to the amount of air time it has purchased.
Republican Attorney General Bill Schuette of Michigan was elected in 2010 after the Law Enforcement Alliance of America ran ads attacking his opponent.
The Law Enforcement Alliance of America also used attack ads to help Republican judges obtain a majority on the Michigan Supreme Court in 2010. One of its ads accused Judge Denise Langford-Morris, an African American Democrat, of being “soft on crime for rappers, lawyers, and child pornographers.”
Justice Josiah Coleman won with $1 million dollars in outside spending. Roughly half of that came from LEAA. The rest came from Mississippi PAC, a group that supports tort reform, insurance, finance, and energy industries.
How Much Money Does LEAA Have?
We don’t know, but it’s a lot!
LEAA reportedly received $4.5 million in anonymous contributions in 2002.
National Rifle Association (NRA). The NRA’s tax documents reveal that it gave at least $2 million to the alliance between 2004 and 2010. Previous reports indicate that the NRA donated $500,000 annually to the organization from 1995 to 2004, which would total more than $6 million.
U.S. Chamber of Commerce. Was a primary funder LEAA, the Harrisburg Patriot reported in 2001.
Massey Energy. From Wikipedia: In 2004 the LEAA got most of its money from Massey Energy CEO Don Blankenship, who had said in numerous interviews that he would do “whatever it takes,” to get rid of “Maag” (a West Virginia Supreme Court Justice). It is also suspected that the organization has taken in large contributions from other interests groups interested in stacking state Supreme Courts with pro-business justices (see U.S. Chamber of Commerce).
Are You OK with Judges Being Bought?
This is dirty. This is wrong. We need to call on our legislators to put a halt to this. Judges need to exercise independent discretion, without even the temptation to sway towards the money funneled at them for their benefit.
As far as I can tell, this is the first time an out of state PAC has tried to influence Arkansas state judicial elections. Let’s make sure it is the last.