McKenna’s Suits Against the Republican Party and BIAW

October 7, 2008

Yesterday’s entry about the lawsuit against the Republican Party drew a comment that warrants notice. James Tierney of Columbia Law School’s National State Attorney General Program saluted Rob McKenna’s decision to bring the lawsuit against the Republican Party. I perhaps did not call attention to my recognition of this decision as a commendable action. Earlier I praised McKenna for suing the B.I.A.W., a major Republican contributor.

Mr. Tierney says that it was appropriate for the Attorney General’s office to bring the action instead of having an independent law firm pursue it. This is certainly something beyond my expertise, but the decision does at least raise a question of a conflict of interest. Given the wide ranging responsibility of the Attorney General’s Office, I am sure that this comes up with some frequency and that it has been adequately resolved in terms of professional responsibility.

My question is that given the appearance of what might commonly, not professionally, be viewed as a conflict of interest, the A.G.’s decision not to pursue immediate action, as is sought in the lawsuit by the two former state supreme court justices, is politically questionable. The citizen suit makes it appear that the A.G.’s office might be going lightly on the case by not seeking immediate remedies.

I should emphasize that there probably is a perfectly sound basis for not seeking the relief sought in the citizen’s suit. In fact the citizen’s suit asks the court for emergency permission to gather evidence so the matter can be decided shortly. The A.G.’s office may very well have determined that there was no such evidence or that the search for such evidence was inappropriate in light of the immanence of the election.

Much of this speculation, however, might have been avoided by hiring outside counsel to pursue the lawsuit. There is certainly nothing impermissible about the Attorney General’s office handling the case, but in the emotional charged context of this election, it may have been prudent to avoid the faintest question about the role of politics in the decisions regarding the litigation.

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Washington Republicans in Legal Quagmire

October 6, 2008

The plot thickens. Last week I discussed the Public Disclosure Commission’s decision that the Washington State Republican Party was illegally financing attack ads against Christine Gregoire. The P.I. last week reported that there was evidence that Dino Rossi was complicit in this endeavor. The finding about the Republican Party was handed by the Public Disclosure Commission to the Republican State Attorney General for enforcement procedures. At the end of the week nothing had been done, at least as far a I could tell.

I also reported earlier last month that the Attorney General had refused requests that he recuse himself, and had filed a lawsuit against B.I.A.W., the notorious Republican attack machine, for violating campaign financing laws. I provided a copy of the Attorney General’s complaint which by its terms would not even require a hearing until long after the election.

Apparently a couple of citizens had had enough of political games involving illegal campaign practices. These two citizens happened to be retired state Supreme Court justices, Utter and Ireland. They filed a lawsuit against the B.I.A.W. that required immediate action instead of waiting until after the election.

The lawsuit calls for an immediate temporary restraining order prohibiting B.I.A.W. from further campaign activity and mandates court hearings in a couple of weeks. The complaint alleges that, counting all the illegal campaign funds, the B.I.A.W. has already exceeded lawful financing limits.

The lawsuit filed today is an extraordinary move, apparently necessitated by the Attorney General’s refusal to take any immediate action. The suit is actually filed by citizens on the Attorney General’s behalf, something that is rarely done and ordinarily would not be done unless the Attorney General refused to, or could not, perform a duty of his office, i.e. the enforcement of campaign financing laws.

But the story does not end there. Today the Attorney General announced that on Friday he had sued the Republican Party for campaign violations. The complaint, which was rather brief, by its terms sought no pre-election relief with the trial set in 2010.

This whole series of events reflects poorly on the Attorney General’s Office and if it turns out that the citizen suit is meritorious, the Attorney General’s Office will look very bad indeed. The fact of the suit suggests a lack of confidence in Republican Rob McKenna’s nonpartisanship.


Washington State Republican Party Caught Breaking Campain Laws

October 2, 2008

When it rains it pours. I’ve discussed the two lawsuit filed by the Attorney General’s office against the Master Builders Association of King County and Snohomish County and agains a BIAW subsidiary. These suits related to allegedly illegal campaign contributions to Republican causes and recently there has been some discussion in the Seattle P.I. linking Dino Rossi, the Republican candidate for governor, to these events.

The State Republican Party (remember them, the ones who in their platform propose to disregard the 14th Amendment) has also recently suffered at the hands of the Public Disclosure Commission regarding campaign contributions. On September 25 the Commission heard a case entitle Washington State Republican Party, Case # 09-015.

The case relates to three letters sent out by the party during the primary season, scurrilously attacking Gregoire and recommending Rossi. The cost of these mass mailings was not reported by the party in the manner required by the law according to the Commission.

The Washington State Republican Party claimed that the communications were exempt, which seems like quite a stretch. The argument seems to be based on RCW 42.17.640(b) which exempts internal communications not associated with an individual candidate.

There were two big problems: it is hard to imagine how mass mailings are “internal” and the letters clearly favored Dino Rossi.

The party argued that the mailings went out to Republicans only, which is a challenging argument since Republicans do not register here. There was difficulty arguing that the mailings were not associated with Rossi.   Assuming that the party knew the law (which may be a significant assumption), my impression was that its behavior was based on not getting caught rather than having a solid legal justification for its actions.

The Commission had no problem finding that the party had violated the law, voting 4-1 to send the matter to the Attorney General to review commencing a lawsuit. The decision is reported here.

What interested me was the lone dissenting vote, cast by Jim Clements, a former Republican legislator. He said that he did not dispute the Commission’s conclusion but that these things are “sometimes more political than substance,” so he voted that there had been no violation of the law.

I hope there was an error in reporting because that is complete nonsense. He agrees with the majority but votes against it for purely political reasons based on speculation. His job is to enforce the law and he apparently would give a pass to illegal campaigning until after elections?

I hope that Rob McKenna recuses himself for a conflict of interest on this one. He declined to do so in the lawsuits previously mentioned. Here the conflict of interest seems so strong it could not be ignored.