MONTGOMERY, Ala. (WIAT) — Attorney General candidate Troy King filed a lawsuit against incumbent Steve Marshall’s campaign on Wednesday to prohibit the campaign from spending any of the money accepted from the Republican Attorneys General Association (RAGA).
In the suit, King alleges that the Marshall campaign received “illegal contributions” from the Washington DC-based association. He goes on to allege that the funds consisted of money from out-of-state casino interests and out-of-state political action committees.
According to court documents, King alleges that as much as $700,000 of contributions violated the Alabama ban on PAC on PAC transfers.
Wednesday evening, Marshall’s attorney wrote a letter demanding King’s attorney “immediately voluntarily dismiss” the lawsuit, saying, “this action lacks any merit whatsoever and therefore should be dismissed.”
Read the full letter below:
RE: King v. Marshall, et al., CV-2018-394
I write on behalf of the Steve Marshall for Attorney General Campaign (“the Marshall Campaign”) to demand that you immediately voluntarily dismiss the above-referenced action as required under the Alabama Litigation Accountability Act, Ala. Code § 12-19-270, et seq. For multiple reasons, this action lacks any merit whatsoever and therefore should be dismissed.
In the first instance, the claims asserted in the Complaint lack any substantive merit whatsoever. As you are well aware, the political action committee operated by RAGA, and from which the Marshall Campaign received the contributions is subject to Federal law and Federal reporting requirements, and is in full compliance with that law. As you also know, Alabama law is – and has been for many years – that a Federal PAC making contributions to a state candidate in Alabama is not required to register in Alabama and report its activity to the Secretary of State.
In fact, in recognition of this, during the 2004 revisions to the Fair Campaign Practices Act (“FCPA”) the very minimal requirement that existed in the Code, which required Federal PACs to file their federal forms with the Secretary of State, was deleted. This provision was stripped from the Code in recognition of the Federal Election Commission State Filing Waiver Program. Both you and Mr. King actually served on the Alabama Law Institute Committee that recommended, among other things, removing that minimal requirement.
At that time (or at any time since then) the Legislature could have gone the other way and actually required Federal PACs to both register and report as Alabama PACs when they make a contribution to an Alabama candidate, thus subjecting them to Alabama’s laws on this issue. But, unlike several other States, such as Georgia and Tennessee, Alabama has chosen not to do so. Guidance published by the Alabama Secretary of State – the Chief Election Officer for the State – provides as follows, as it has for many years:
Federal PACs are not subject to the Fair Campaign Practices Act. Each federal PAC is required to comply with federal campaign finance law by submitting any required reports to the Federal Election Commission (FEC).
SOS PAC Filing Guidelines, available at https://sos.alabama.gov/sites/default/files/voter-pdfs/glpac-2016%20(1).pdf. For all of these reasons, the ban contained in Ala. Code § 17-5-15(b) simply does not apply to the PAC at issue here.
Further, even if it were assumed that Alabama law applied here, which it clearly does not, the receipt of a contribution by a candidate from a PAC that has taken money from another PAC is not what is prohibited under the FCPA. Rather, the code section at issue here, Ala. Code § 17-5-15(b) prohibits the transfer of funds from one PAC to another, but it only regulates the activity of the PACs. Had the Legislature desired to prohibit the receipt of such contributions by a candidate, it certainly could have done so – and in fact in other situations does precisely that.
For example, in Ala. Code § 17-5-15.1(a), the Legislature stated that
[a] principal campaign committee of a state or local candidate and any person authorized to make an expenditure on its behalf may not receive or spend, in a campaign for state or local office, campaign funds in excess of one thousand dollars ($1,000) that were raised by a principal campaign committee of a federal candidate.
Id. (emphasis added). Unlike this section, though, the prohibition in § 17-5-5(b) (the PAC to PAC ban) does not state that a candidate may not receive a contribution – despite the fact that it could have if that was what the Legislature was seeking to prohibit.
Additionally, there is no private remedy provided for a violation of the FCPA, with the possible exception of an election challenge – which here would be properly filed with the Republican Party and not in Circuit Court. As you are aware, the FCPA contains numerous provisions imposing penalties for violations. See Ala. Code §§ 17-5-19 and 19.1. The Act does not, however, purport to authorize a private citizen to bring suit seeking to enforce it by means of the extraordinary remedy of an injunction that restricts the First Amendment rights of a candidate. Penalties for violation of the FCPA (if one even existed here) are criminal – or in the nature of a civil fine. The remedy King seeks here is quite clearly not provided for under Alabama law and therefore is not available.
As you also know, this action is barred by Ala. Code § 17-16-44, referred to sometimes as the jurisdiction stripping statute. That section of the Code bars any court from hearing actions regarding, among other things, the “conduct” of an election. The only exception to this rule is where the authority of a Court to intervene is “specially and specifically enumerated and set down by statute . . .” Id. That is not the case here, and as noted above, the specific remedies provided by the FCPA are criminal penalties or civil fines imposed by the Ethics Commission – not injunctions issued by a Circuit Court.
Without question this action asks the Court to address the “conduct” of the election, which it is prohibited from doing under the Code. This statute was cited as grounds for dismissal in Rice v. Chapman, 51 So. 3d 281 (2010). As you know, because you served as counsel for plaintiff in the matter, that case alleged a failure on the part of a candidate to comply with the FCPA – specifically failure to timely appoint his principal campaign committee. Id. at 282. The Court found that the proper course for the plaintiffs was to pursue an election challenge before the Republican Party. Id. at 285. This action is nothing more than a back door pre-election challenge that belongs – if anywhere – in front of the Republican Party.
Finally, the remedy of a temporary restraining order sought here by King is barred by the equitable doctrines of both laches and unclean hands. The Marshall Campaign first reported receipt of a contribution from RAGA on March 2, 2018, which was 131 days ago – more than four months before the filing of this lawsuit. King actually held a press conference to note contributions to Attorney General Marshall’s campaign from RAGA a full month before filing this action. The run-off election is on July 17, less than one week from now. To the extent that there is any time pressure here, that pressure is solely the result of King’s failure to take any action prior to the absolute 11th hour. As a result, King is absolutely not-entitled to any equitable remedies he alleges are now only “needed” because of his own inaction.
Because there is no substantial justification or basis for Mr. King’s claims against these Defendants, pursuant to Ala. Code § 12-19-272, Plaintiff requests that King voluntarily dismiss his Complaint, in advance of the hearing scheduled for tomorrow at 2:00 pm. Otherwise, Defendants will seek expenses and attorneys’ fees for any and all efforts necessary to have the matter dismissed.
Edward A. “Ted” Hosp
Counsel for Steve Marshall for Attorney General