In a press release earlier today, Knoll Lowney of Smith & Lowney stated that:

“Today, lawyers for gubernatorial candidate Dino Rossi indicated that Rossi will fight the subpoena that requires him to testify under oath as to his role in the illegal fundraising campaign of the Building Industry Association of Washington(“BIAW”), which is currently being prosecuted by the State Attorney General. “

You can catch the current King 5 news report here on YouTube.

You can see last week’s King 5 news reports here.

Lowney noted that a separate lawsuit was filed last week by former Washington State Supreme Justices Faith Ireland and Robert F. Utter regarding Republican Rossi’s alleged collaboration with the BIAW’s massive fundraising effort to swing the Governor’s race in favor of Republican Rossi.

The BIAW has a war chest of $3.5 million which it is spending opposing incumbent Democratic Governor Christine Gregoire and supporting Republican Dino Rossi. Under state law contributions directly to candidates are limited to $1600 per election for state wide office.

No such limit apples unfortunately for so-called independent PAC’s which is what the BIAW is claiming their PAC’s like ChangePAC and It’s Time for a Change are. But independent means just that – there can be no collaboration between the candidate and the so-called independent committee.

The irony here is that the BIAW actually asked for an interpretation of what independent meant in 2004. The answer seems pretty clear. In a memorandum dated June 15, 2004, written by Susan Harris, Assistant Director of the Washington State Public Disclosure Commission she stated a no answer to the following:

Tim Harris, General Counsel for BIAW, has asked whether a candidate may solicit funds for a political committee (PAC) that would make independent expenditures in support of that candidate, if the candidate:
(1) has no say with respect to the spending of the PAC or other content of the message;
(2) would not encourage or approve the actual specific expenditure; and
(3) would not otherwise collaborate with any PAC officials regarding the expenditure?

Staff believes the answer to the question is no. Not all of the elements of an Independent Expenditure as defined in RCW 42.17.020(24)(a) could be satisfied.

….., the definition of “independent expenditure” includes a four part test in RCW 42.17.020(24)(a). Each of the four parts must be met in order for the expenditure to satisfy the definition. The circumstances posed by BIAW fail two of the four parts.
Specifically, subdivision (iii) requires that the spender not be a person who has received the candidate’s “encouragement,” and subdivision (iv) says the candidate and the spender may not have “collaborated for the purpose of making the expenditure,” when the expense pays for political advertising supporting that candidate or opposing that candidate’s opponent.

Webster’s II New Riverside University Dictionary defines “encourage” as: “1. To inspire with hope, courage or confidence: HEARTEN; 2. To give support to: FOSTER; 3. To stimulate.”

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.

Collaborate” is defined in Webster’s as: 1. To work together, esp. in a joint intellectual effort; 2. To cooperate treasonably, as with an enemy occupying one’s country.

Staff is of the opinion that if a candidate solicits contributions for a PAC by, for example, referring potential contributors to the committee, putting a link to the PAC’s website on his or her campaign website, or referencing the PAC in his or
her own campaign literature, then the candidate and the PAC are working together for the purpose of making a political advertising expenditure. That collaboration disqualifies any resulting expenditure from the definition of independent expenditure.
Based on a reasonable application of the definition of independent expenditure that is consistent with the intent of the statute, staff is recommending the Commission find that if a candidate assists a PAC in fundraising and the PAC then undertakes political advertising supporting that candidate or promoting the defeat of that candidate’s opponent, that expenditure does not satisfy the definition of “independent expenditure.”
Examples of fundraising assistance include helping the PAC identify potential contributors, referring potential contributors to the PAC, and referencing the PAC on the candidate’s website or in his or her literature.

If the BIAW and Rossi had complied with this memo they would not be in court now. My guess is that the BIAW decided to ignore this memorandum, realizing they could spend millions of dollars supporting Rossi and the worst they would face would be a fine of a few thousand dollars. The cost of trying to skirt the laws and put Republican Rossi in the Governor’s seat would be a pittance compared to what the BIAW would gain by having their ally as Governor..

Maybe the Court should fine them the total amount of their illegal campaign spending. That would certainly get their attention.