The Buildergate scandal takes a new twist this morning as former Washington State Supreme Court Justices Faith Ireland and Robert Utter filed notice with Attorney General Rob McKenna of their intent to bring suit against Republican gubernatorial challenger Dino Rossi, alleging illegal campaign coordination with the Building Industry Association of Washingtion (BIAW) and its political committees. They also filed a lawsuit in King County Superior Court claiming that the BIAW’s coordination with Rossi disqualify it from making “independent” expenditures in the 2008 gubernatorial.
These dramatic legal developments could have a huge impact on the gubernatorial race. The BIAW has already spent over $2 million on behalf of Rossi this year, mostly smearing Governor Chris Gregoire, and plans to spend an additional $700,000 during the final weeks of the campaign. The justices are asking that further “over limit” expenditures be barred by court order.
These suits are just the latest in a widening Buildergate scandal for which the BIAW is already being prosecuted, in a case stemming from Utter and Ireland’s original October, 2008 complaint. But while McKenna is pursuing the BIAW for numerous “egregious” campaign finance and reporting violations, he took no action on the assertion that the BIAW improperly coordinated its activities with Rossi, thus prompting Utter and Ireland to bring suit on their own.
In a joint statement, the two retired justices—both appointed to the bench by Republican governors—outline both the evidence behind their allegations, and their motivation for seeking enforcement.
The evidence upon which we base our legal action can be construed to show that Dino Rossi was not just a beneficiary of these illegal activities, but was a knowing and active participant. The evidence shows, moreover, that the attack ads of the BIAW are not really “independent” of their beneficiary Dino Rossi. This is because Dino Rossi helped the BIAW to amass the war chest for these attack ads.
This is an important issue for all races. Special interests are increasingly supporting candidates through “independent expenditures” that are not subject to contribution limits. These “independent” campaigns also tend to contain the most vicious and dubious negative attacks, since the benefitting candidate can say that they have no control over these messages. It is critical to enforce the law that prohibits candidates from providing fundraising assistance to or otherwise coordinating with “independent” committees.
The fact that Dino Rossi had not publicly declared his candidacy when this alleged coordination took place is not a defense. A person becomes a candidate when he helps a political committee to amass a war chest to support his candidacy. And the evidence suggests this is what happened here.
If this coordination took place, then the BIAW’s expenditures would not qualify as an independent expenditure, and would be legally limited to $2,800. The millions of dollars of attack ads that have blanketed our airwaves would be illegal, and further expenditures should be enjoined.
Washington campaign laws are in place to ensure our elections are fair, that all candidates know what they are facing from their opponents in terms of campaign financing. These rules are there to ensure that special interests cannot buy their way into a legislative process designed to serve and protect the interests of all citizens. Without enforcement our laws are meaningless.
When the Buildergate scandal broke last week, the Rossi campaign tried to dismiss it as frivolous, partisan electioneering, a sentiment that seemed to ooze into some of the press coverage (the Seattle Times, for their part, ignored the story entirely), but remember, these are two retired Supreme Court justices making the charges, and like their original complaint, for which the BIAW is now being prosecuted, their legal arguments seem to be fairly airtight.
In fact, Rossi has publicly admitted the action at the heart of this scandal, that he called board members of the Master Builders Association in May of 2007, when they were considering a request to contribute to the BIAW’s “fund for Rossi.” Rossi excuses his actions:
“I didn’t ask them to put money anywhere but it would have been perfectly OK for me to do that because I wasn’t even a candidate.”
But as Utter and Ireland point out in a FAQ posted to the website of attorney Knoll Lowney, Rossi’s claimed defense is little more than a distinction without a difference. State law and prior Public Disclosure Commission (PDC) advisories make it clear that a candidate does not have to ask for a specific dollar amount to be involved in fundraising, and the very act of participating in such activity, even on behalf of a so-called “independent” campaign, automatically makes one a candidate by definition.
Indeed, back in June of 2004, the BIAW asked the PDC for an opinion on this very issue, to which the commissioners replied without equivocation:
One of the most fundamental ways a candidate could encourage a person to purchase political advertising supporting that candidate is to help make sure that person has sufficient funds to undertake an effective advertising effort. Assisting a PAC in fundraising fosters that committee’s ability to make the political advertising expenditure benefiting the candidate. As such, the PAC expenditure is not sufficiently removed from the candidate to qualify as an independent expenditure.
That collaboration disqualifies any resulting expenditure from the definition of independent expenditure.
You really can’t get any clearer than that.
Buildergate is shaping up to be a classic political scandal, and like most such scandals, it’s the coverup that will eventually bring down the perpetrators, for had the BIAW properly reported its activities like it knew it should have, we may never have known about Rossi’s illegal coordination.
With most of the BIAW’s warchest already spent, there may not be time for the courts to impose any meaningful sanctions, so the only question remaining is whether Rossi will suffer the consequences of his unethical and illegal behavior before the election, or after? I await to see if our local media will fulfill their obligations as public watchdogs, or merely resort to the kind of half-hearted stenography on this scandal we’ve seen thus far.