Our appeal hearing with the Tennessee Registry of Election Finance is set for November 3-4.
As you know, Susan Curlee and subsequently the Tennessee Registry of Election Finance (TREF) have been prosecuting a case against the five of us since late 2014. It has been an eye-opening experience: what appears to be (or have been) a very close relationship between Curlee and the Registry, false and harassing charges from Curlee, demonstrably fabricated statements and charges from the state, multiple attempts by Curlee to get the DA to charge us with various crimes, deleted public records, “accidentally deleted” public audio recordings, and deposition testimony regarding the proper preparation of turnips.
This case isn’t technical. This case isn’t normal.
We are involved parties and you will and should read this—and our subsequent and previous updates—with that in mind. We will cover multiple aspects of the story and provide links to source materials when possible. Despite the Registry’s and Ms. Curlee’s efforts to seal and hide many of the records, most of the documents in this case are public records: the depositions, the motions, the responses, the transcriptions of the hearings themselves.
Through the Registry, Curlee and her powerful political allies have been effective in using state tax dollars and the power of the state government to investigate us and harass us, to transmit to the public lies about us, and to damage our reputations (as Curlee gleefully acknowledged the day of the ruling in an email to Jean Barwick, the paid executive director of the Williamson County Republican Party).
(Note: When Ms. Barwick familiarly refers to “Patricia,” she is referring to Registry member Patricia Heim, former Davidson County Election member and active Davidson County Republican Party and Nashville Republican Women member.)
The Registry jumped in with both feet in support of Susan Curlee. Lest you think we’re exaggerating when we point out that the Registry’s behavior in this case is different than their behavior and judgment throughout their history, let’s take it from the Registry itself. Drew Rawlins, long-time Executive Director of the TREF, has testified that, to the best of his knowledge, with the exception of the Williamson Strong case, TREF has NEVER in its existence:
1) Fined a group for failing to register as a PAC without evidence of cash contributions.
2) Found that a group supported or opposed a candidate without an express endorsement or opposition to any particular candidate for public office.
3) Found that presenting factual information regarding candidates for public office constituted support for or opposition to a candidate within the meaning of the PAC definitions.
4) Determined that a group reporting on another entity’s endorsement of candidates constituted support for or opposition to a candidate by the group sharing that information.
5) Determined that the act of meeting with candidates for public office constitutes PAC activity.
6) Found that a nonpartisan [and non-candidates specific] “get out the vote” effort constituted a contribution or expenditure under the campaign finance laws.
7) Held that the act of purchasing a voter list constituted an expenditure or a contribution in support of or in opposition to a candidate.
That’s pretty much the whole case against Williamson Strong.
So why? Why did the Registry act the way it did? We could compare this to lots of other cases (and we might), but let’s just pick a contemporary one for now. Let’s look at a case that happened just this year, one that was fully resolved within a couple of months. The Registry has the same members, but they reached a dramatically different decision.
The Sumner Sentinel
The Sumner Sentinel is a political website, Facebook page, and printed “newsletter” in Sumner County. The newsletter version of the Sentinel was printed and mailed a total of three times in two years. The mailed, printed version was linked to the website and the Facebook page; you could read the “newsletter” through the website and so forth.
The Sumner Sentinel team describes itself as:
“a group of citizens focused on bringing transparency and accountability to local government through publications, advocacy opportunities and online forums”
Some of their content in their “Election Issue” arguably advocated for the election of some candidates and for the defeat of others. Their election intent was clear. For example:
The Sumner Sentinel had nice things to say about the incumbent Sumner County Assessor of Property John Isbell and disparaging things to say about his opponent. That shouldn’t be shocking, given that Isbell was the founding administrator of the Sumner Sentinel Facebook page and the owner of the Sumner Sentinel website domain. John Isbell also actively campaigned on the Sumner Sentinel’s Facebook page.
The Registry, however, found that the Sumner Sentinel, which had web hosting fees as well as over $11,000 in printing costs, was “the media” and thus was not a PAC.
The Registry did not comb through the content of the Sumner Sentinel website, Facebook page, and printed material (as they did with us) to determine if their content met the standards of advocating for or against the election of a candidate. Nor did the Registry ask (or demand, as in our case) that the Sumner Sentinel team defend themselves against the claim that they were expressly advocating for or against the election of certain candidates. Nope. The Registry concluded that the Sumner Sentinel was a media publication and was therefore covered by the First Amendment. Very simple. The Registry made it clear that editorial content – at least in this case – cannot be considered a contribution. It is a First Amendment issue, in the Sumner Sentinel’s case, according to the Registry.
Registry counsel explained that, according to the law, the only way the media could be considered a PAC is if it were “owned” (partly or wholly) or controlled (partly or wholly) by a candidate. Note that John Isbell was a candidate for office and the Sumner Sentinel promoted him. Though John Isbell administered the group’s Facebook page, owned the website domain, and was described as “on the team” on the newsletter itself, he didn’t “own” the newsletter part. That was owned by Dr. David Black (Congressman Diane Black’s husband). Dr. Black explained (in an affidavit) that when Isbell was described as “on the team,” all he really did was set up the website.
So candidate John Isbell wrote for the Sentinel, owned the website, and administered the Facebook page, but had “nothing to do” with the content? He was labeled “part of the team” but really wasn’t?
Apparently, a group of people can spend eleven grand to print a political newsletter and expressly promote the candidate “on the team” of their publication, but they are not a PAC.
Maybe what really matters is who your friends (and enemies) are?