Another Day, Another Dark Dollar

There is a good article by Eric Lipman on the NY Times today (expanding on a December Arkansas Project post) about health insurance corporation money pouring into a national “non-profit” group, National Federation of Independent Business, which is in turn pouring money  to the tune of $500,000 in advertising into Arkansas for “issue advertisements,” (because they aren’t allowed to be political and keep their non-profit status). 

Here is a screen shot from the ad, featuring Arkansas business man and National Federation of Independent Business

See...informative. Not political at all.
See…informative. Not political at all.

I wonder if the ad says anything hinting at who you should maybe vote for in the Arkansas Senate Race? (Hint: yes). 

Yes. 

“The worst part about Obamacare is that we just don’t know what’s going to come next,” said John Parke, Chief Operating Officer of Democrat Printing and Lithographing Co, a business that has been in his family for several generations. “Healthcare costs for our business and our employees continue to skyrocket, and we just can’t seem to get a straight answer out of Washington”

Here’s a translation: 

Obamacare=democrats bad 

Don’t know what’s going to come next= I’m guessing he wants the thing that’s going to come next to be not Mark Pryor…

We just can’t seem to get a straight answer out of Washington=Mark Pryor bad

REGARDLESS OF HOW YOU FEEL ABOUT THE ARKANSAS SENATE RACE, YOU CAN’T TELL ME THIS ISN’T A POLITICAL AD!

The ad IS paid for by Voice of Free Enterprise, but tax records filed late last year by the group show $1.593 million of the organization’s $4.9 million in revenue came from an anonymous donor in 2012, the largest single contribution.A spokesman for America’s Health Insurance Plans confirmed that this is where the money went. 

For the viewers of the television ad in Arkansas, there would be no way to know that the message was actually paid for in part by health insurance companies, which are vehemently opposed to a tax on health care premiums that will cost insurers roughly $100 billion over the next decade.

The Arkansan featured in the ad didn’t even know who was funding it when he was filmed: 

“I was not aware of that,” said Mr. Parke, who is said he is a member of the National Federation of Independent Business. “It is relevant to understanding who is sponsoring the message.”

I don’t know how I feel about the tax issue because I haven’t looked at the legislation and probably wouldn’t understand the nitty gritty tax issues in any event, but that’s not the point. 

Another major donor to the Voice of Free Enterprise campaign, a comparison of multiple federal tax records shows, was Freedom Partners, a group founded by Charles G. and David H. Koch, the billionaire corporate executives and owners of the Kansas-based Koch Industries, who have been vocal critics of the Obama administration.

 

Seriously, is there anything that the Koch’s don’t have their fingers in? 

The_Voice_of_Free_Enterprise___NFIB_VFE___National_Federation_of_Independent_Business

 

 

Just substitute “don’t own a small business” with “do own large a business.” They are literally tricking small business owners into being human shields for their political activities. 

And as of now, it’s entirely legal . 

The National Federation of Independent Business has a complicated legal structure: It has at least five separate nonprofit groups through which it moves money; at times, money is donated to one of the divisions but is then transferred and spent by another on an apparent political cause. The group calls the spots run in Arkansas “issue ads,” meaning they are not explicitly political and so would not affect the group’s status as a nonprofit, even though they clearly point a finger at Mr. Pryor.

The Internal Revenue Service this year had considered changing the way political activity by such nonprofits is defined — to try to impose greater limits on groups that do not need to disclose where they get their money. But after protests by conservative and liberal nonprofits, that effort was delayed.

“I think it’s unfortunate that new rules have been delayed,” said Paul Ryan, senior counsel with the Campaign Legal Center, a nonprofit watchdog that has pushed for the new rules. “It allows groups like this to be used and abused and get around campaign finance and tax law disclosure requirements.”

Here’s the link to the New York Times article. 

I Went Down the LEAA Rabbit Hole

What Happened in West Virginia?

warren-mcgraw

I spoke with former West Virginia Supreme Court Justice Warren McGraw this morning. West Virginia, like Arkansas, is one of 39 states that elect judges. I told him what was happening in our state. He’s all too familiar with stealth “independent spending” campaigns designed to buy a certain judicial perspective. I asked him if he could tell me a little bit about what happened in his judicial race.

“Well, if you really want to know, there are two books written about it that you should read. There’s a nonfiction book called, ‘The Price of Justice.’ And some guy out of Mississippi wrote a fictionalized account of it. I can’t remember his name, but he made me a woman in the book. I’ve never read it.”

“It wasn’t John Grisham by any chance?”

“Yeah, that’s his name. Is he from Mississippi or Arkansas?”

“Well, he’s a native son of Arkansas, but he doesn’t live here anymore. See, we’ve got this same sort of thing happening in Arkansas right now. I’m about to go to a rally at the capitol and I think we are going to come up with a plan to stop it.”

“Oh. I don’t think you’ll be able to do anything about it, but the world needs optimistic people like you. Good luck.”

…………………………………………….

Glen Hooks of the Sierra Club is holding up a lump of coal on the steps of the Arkansas capital.  He calls the coal “dirty,” but I can’t help thinking that it looks really pretty, sparkling under the noon sun. The lump, he says, stays on his desk to remind him of what happened in West Virginia. A coal man, Don Blankenship, through the LEAA, bought the judiciary in order to give his company, Massey Energy, the leverage it needed in order to completely dominate the market. It worked, but in 2010 a Massey Energy mine exploded, killing 29 people.

The coal stops sparkling. Now it looks as dark as the money funneling into Arkansas.

This is the second time today I’ve heard about West Virginia and I’ve got the feeling that if I want to know what’s happening here, I need to look at what happened there.

BnsYFNpIIAAwK61

……………………………………………..

1998

It’s 1998  and Don Blankenship, CEO of Massey Energy, the biggest coal producer in Appalachia, drives Hugh Caperton’s small coal mine, the Slab Fork mine, into bankruptcy. Caperton and his company fight back and win a $50 million judgment against Massey, but Blankenship fights back. He fights it all the way to the United Supreme Court and back.

Blankenship was known in West Virginia for breaking up one of the strongest unions in America. He strongly believed in wielding his political advantage to end social welfare programs out of West Virginia, despite the fact that it was the second-poorest state in the country. His company was also known for its outrageous disregard for safety.

Caperton’s lawyer believed Massey had been responsible for the deaths of “scores of miners.” Worse, the man had vendettas against anyone who tried to take on Massey Energy.

2003

Blankenship appeals Caperton’s verdict to the Supreme Court of Appeals of West Virginia. Three of the five appellate judges were hardcore progressives and Blankenship knew he wasn’t likely to win his appeal. So before Massey’s Capterton appeal was heard, Blankenship poured $3 million into defeating a liberal Democratic West Virginia supreme court justice named Warren McGraw.

McGraw was a lifelong politician. In thirty-four years he had been in the House of Delegates, the state senate, the state senate president, on the county school board, and chief justice of the state supreme court. He, like the majority of West Virginians, was liberal and believed government should provide the crucial safety netting beneath people’s lives, but was conservative on topics like abortion and gay rights.

On July 21, 2003, Forbes published an article titled “Buying Justice,” which featured a picture of a judge with a target on his back. Forbes predicted Warren McGraw was one of the judges targeted by a strategy organized by big business:

West Virginia Supreme Court Justice Warren McGraw will be among the targets.

McGraw had drawn the ire of big business when he ruled that employees could sue even before they were injured if their employees put them at unreasonable risk of harm. Massey was one of those employers who faced dozens of suits.

The article traces “the war on judges”:

The war on the judges began in 2000, when Donohue, who had run the American Truckers Association and took over the chamber in 1997, visited Bernard Marcus, the firebrand founder of Home Depot, at the company’s base in Atlanta. The now-retired Marcus stunned Donohue with his outrage, complaining of getting hit with a new lawsuit every day. “Every time I sit down with a CEO I’m told their major economic problem is the trial lawyers,”Marcus told Donohue, adding, “I have never seen such fear and intimidation in my life.”

Marcus helped him raise $8 million to target judges in the 2000 elections; that expanded to $20 million in 2001 and to $40 million in 2002. Much of the money went to the Institute for Legal Reform, a tax-exempt chamber unit that runs this anti-judge “voter education” effort. Thus, 60% of the money is tax-deductible for the companies that gave it.

The article doesn’t say that money was also dumped into LEAA as a shield, but LEAA also became active in targeting candidates in 2000.

2004

McGraw was defeated by Brent D. Benjamin. Despite the massive aid to his campaign from Blankenship, Benjamin refused to recuse when the case made it to the supreme court. Benjamin joined the 3-2 majority overturning the lower court on a narrow technicality.

2009

It’s 2009 and Theodore Olson, a Republican lawyer highly experienced at arguing before the US Supreme Court, takes on Caperton’s case before the highest court in the land. Caperton v. Massey Coal Company had spent the previous eleven years meandering through two states and three courtrooms. It had nearly ruined Caperton; but, Blankenship was bolder than ever.

The question before the court was whether a citizen’s right to due process and a fair trial was violated when one side made large contributions to a judge considering the case. 

Olson’s friends were confused about why he was suddenly taking on a large corporation, but he truly believed that disproportionate special-interest campaign spending challenged the very notion of American justice.

Olson’s opening argument begins,

A fair trial in a fair tribunal is a fundamental constitutional right. That means not only the absence of actual bias, but a guarantee against even the probability of an unfair tribunal.

The United States Supreme Court heard oral arguments in March 2009. In June 2009, the Court found for Caperton and Harman Mining, remanding the case back to the West Virginia Supreme Court. 

Writing for the majority, Justice Kennedy called the appearance of a conflict of interest so “extreme” that Benjamin’s failure to recuse himself constituted a violation of the plaintiff’s Constitutional right to due process under the Fourteenth Amendment. Justice Kennedy noted that not every campaign contribution by a litigant creates a probability of bias that requires a judge’s recusal. Justice Kennedy wrote, “We conclude that there is a serious risk of actual bias — based on objective and reasonable perceptions — when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

What Does Law Enforcement Have to Do With Coal Mining? 

The answer is nothing, except the fact that the Chamber of Commerce and the NRA are both using LEAA as a shield for their shady meddling into elections. 

I have no doubt that LEAA was funded by the NRA in 1991. From 1991 until 1999, LEAA’s activities were strictly reserved for advocating gun rights (by pretending to be a law enforcement alliance).

But in 2000, when the Chamber of Commerce began pumping millions of dollars into state elections, a large majority through independent “awareness groups” LEAA’s mission took a new avenue.

Fotis

This is James Fotis. He’s the Executive Director of LEAA. He’s a former police officer. This is from his LinkedIn page:

Executive Director

Law Enforcement Alliance of America November 1990 – Present (23 years 7 months)

Police and crime victims advocacy, corporate crisis in certain industries

Corporate crises in certain industries?! How far from crime victim advocacy can you get?

LinkedIn also lists someone named “Robert A.” who is a “Field Representative for LEAA.” (I don’t have the full version of LinkedIn because I’m cheap). Robert A works for Watson Pharmaceuticals. If you know anything about the pharmaceutical industry, you know it’s been beset by major lawsuits (disclaimer: some brought by my firm) in recent years for conspiracy to fix prices.

IS THERE A LINK WITH FORMER GEORGIA REPRESENTATIVE BOB BARR(R)?

In 1999, the LEAA went to Washington and met Republican Representative Bob Barr (who later left the Republican party and became a libertarian). Bob Barr was one of the most outspoken Republicans about tort reform. In the linked article, LEAA brags about taking down President Bill Clinton’s attempts at gun regulation. Bob Barr is famous for being one of the managers of Clinton’s impeachment.

In 2000, the LEAA began infiltrating itself into political activities and designed expensive strategies to get rid of candidates it viewed as unfavorable to big business.

In 2001, Bob Barr began his tenure on the Board of Directors of the NRA. The same organization that started LEAA and continues to partially fund it.

 What Brought LEAA’s Eye to Arkansas? 

Tort Reform has obviously been a huge topic in Arkansas in recent years. But what brought the LEAA’s gaze to Arkansas is still unknown. Do we have a Don Blankenship of Massey Coal waiting in the wings, stacking the deck for a future case?

Finally: If you support tort reform, that’s fine.

I represent insurance companies.

Why would a liberal democrat represent insurance companies? For the same reason Thomas Olson represented Caperton. I believe everyone deserves a fair shot at justice, no matter what side they are on. 

But how can we have a fair judicial process if we can’t even see who is funding judicial elections?

The Supremely Unjust Election of 2014

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 – jmccutchen@mccutchenlawfirm.com – 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.

tldrwikipedia

 

My first task was to figure out where campaign finance rules in Arkansas even come from.

usedgooglenotdisappointed

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.

ICan'tEvenPieChart

 

“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.

Wat

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
wynne4supremecourt@yahoo.com
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.

YUNoRepudiate

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?

LEAA History

From americanprogress.org:

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

ha_ha-behind7proxies

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:

GUN CONTROL

CONCEALED CARRY

ILLEGAL IMMIGRATION

CAPITAL PUNISHMENT

PUBLIC EDUCATION

PRIVACY

CRIMINAL JUSTICE REFORM

USE OF FORCE

OFFICER SAFETY

and recently:

VICTIM’S RIGHTS

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) :

James Chapman President (2004) 1
James J. Fotis Executive director (2004) 2
Richard Beckman Member of the Board of Directors (2004) 3
Joe Constance Member of the Board of Directors (2004) 4
Joseph P. DeBergalis Jr. Member of the Board of Directors (2004) 5
Jeff Doyle 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
Kevin Watson 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.

Delaware, 2000

William Roth Jr. – incumb. (R) 44%
v. Thomas Carper (D) 56% *
Delaware 2000
Senate/General

Mailings criticized Carper.

Pennsylvania, 2001

Mike Eakin (R) 53% *
v. Kate Ford Elliott (D) 47%
Pennsylvania 2001
Judicial/General

 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.

Virginia, 2001

Jerry Kilgore (R) 60% *
v. Donald McEachin (D) 40%
Virginia 2001
State AG/General

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.

Illinois, 2002

Joe Birkett (R) 47%
v. Lisa Madigan (D) 50% *
Illinois 2002
State AG/General

$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.

Kansas, 2002

David Adkins (R) 50%
v. Phill Kline (R) 50% *
Kansas 2002
State AG/Primary

$250,000

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.”

Mississippi, 2002

C. P. (Chuck) McRae – incumb. (None) 23% *
v. Jess Dickinson (None) 52%
Mississippi 2002
Judicial/General

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.

Missouri, 2002

Jean Carnahan – incumb. (D) 49%
v. Jim Talent (R) 50% *
Missouri 2002
Senate/General

$45,225

TV ad, content unknown. Source listed Carnahan as the favored candidate but that is unlikely given LEAA’s history.

Texas, 2002

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.

Mississippi, 2003

Jim Hood (D) 63% *
v. Scott Newton (R) 37%
Mississippi 2003
State AG/General

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.

Mississippi, 2008

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.

Michigan, 2010

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.”

Mississippi, 2012

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.