By John Fritze, The Baltimore Sun
5:22 PM EDT, August 10, 2013
The Democratic Governors Association is seeking a ruling that would allow it to expand its role in federal elections as its chief fundraiser, Gov. Martin O'Malley, is considering a run for president, documents filed with the Federal Election Commission show.
In a case that could be decided as early as this month, the Washington-based governors group is seeking to increase its ability to perform voter registration and get-out-the-vote efforts in gubernatorial races — and its leadership stresses that it has no intention of engaging in campaigns for Congress or the White House.
But watchdog groups contend that a favorable ruling for the DGA would permit the group to spend "soft money" on federal campaigns and say it could open the floodgates for similar groups that have been banned from that practice for more than a decade.
Soft money refers to contributions given to third-party groups, not candidates. It can be used to promote candidates as long as they do not coordinate with the group. It also can be used for voter-turnout activities and ads that can influence elections. Because the money is not regulated by the FEC, there are no limits on how much donors may give.
"This is a ridiculous request," said Fred Wertheimer, president of the campaign finance reform group Democracy 21, which opposes the DGA's effort. "Our concern here is that it would reopen the soft money loophole and allow [groups] to become vehicles for laundering huge unlimited contributions into federal elections."
In its request, DGA attorney Marc Elias said the group has no plan to spend money on federal elections, only to engage in what the FEC defines as "federal election activity" on governors' races. That can include get-out-the-vote and registration efforts in cases in which an election for governor occurs at the same time as a federal race — even if the group is focused only on the state race.
DGA officials note that, historically, the group has engaged only in state races and that even if they were inclined to get involved in a congressional or presidential race, there are more effective campaign finance entities to do so.
Responding to questions about the proposal, DGA spokesman Danny Kanner said, "This story fundamentally misunderstands the mission of the Democratic Governors Association, which is to elect more Democratic governors, period. The DGA and organizations associated with it would never and could never in practice involve themselves in trying to influence federal elections."
But in fact, the group has used another campaign finance vehicle to step into federal elections in the past. In 2012, DGA Action, the group's super-PAC, placed a series of online ads on Facebook and Google in early presidential primary states opposing Republican candidates Rick Santorum and Mitt Romney. Only one of those states, New Hampshire, also had a governor's race under way.
At the time, a DGA spokesman told the nonpartisan Sunlight Foundation that the group was seizing "an opportunity to talk about the federal candidates ... and communicate to small donors about a variety of issues." Last week, however, DGA officials said the ads were designed to raise money for the group, not influence the presidential election.
Campaign finance experts say that even if it is not the DGA's intention to get involved in federal races now, they are concerned that a favorable opinion would give the group wiggle room to explore expanding its role later. Nothing would stop the DGA from organizing a broader get-out-the-vote effort in battleground states that would benefit a Democratic presidential nominee in 2016.
"The notion that DGA's activities are entirely separate from federal politics is absurd," said Paul S. Ryan, senior counsel for the nonpartisan Campaign Legal Center, which is opposing the request. "History demonstrates that governors frequently run for federal office."
O'Malley, Paul said, "is Exhibit A for precisely how closely the activities of groups like DGA are intertwined with federal elections and politics."
O'Malley spokeswoman Lis Smith said the governor had zero involvement with the idea.
"The DGA's only mission is to elect Democratic governors, so anyone who suggests that the DGA ... would ever try to influence a federal election simply doesn't understand how politics works," she said in a statement.
O'Malley, whose second term as Maryland governor ends in January 2015, has said he is considering a run for president. As chair of the DGA in 2011 and 2012, he frequently served as a surrogate for President Barack Obama's re-election — an effort that, by extension, raised his own national profile.
As finance chairman, O'Malley remains a top official of the DGA. The group's executive director, Colm O'Comartun, is a longtime O'Malley aide dating to his days in Baltimore's City Hall. O'Malley's federal campaign finance reports released last month show that his political action committee is paying rent to the governors group. Aides say O'Malley is expected to travel heavily this year on behalf of the DGA to raise money for other governors.
The 2002 campaign finance law, known colloquially as the McCain-Feingold Act after the senators who created it, among other things banned "association[s] ... of individuals holding state ... office" from spending soft money on what the FEC defined as federal election activity.
In an FEC hearing July 25, Elias said the prohibition did not clearly apply to the DGA. Though the FEC delayed a ruling on that argument, several commissioners have said that it strains believability.
"I am having a very hard time figuring out how a group of governors, by any stretch of the imagination, isn't an association of individuals holding state office," FEC Chair Ellen L. Weintraub said during the hearing. "This one seems pretty black and white to me."
Elias told the commissioners that if they do not grant the association's request, it would like to set up a separate group called Jobs & Opportunity that could spend money on federal activity.
Jobs & Opportunity would be made up of two members: O'Comartun and the DGA's chief operating officer, Ben Metcalf. Elias said DGA members could help decide how Jobs & Opportunity's money would be spent and that the governors association could also fund the new group.
While they did not rule on Jobs & Opportunity, several of the commissioners appeared more open to the idea.
Bill Allison, editorial director of the Sunlight Foundation, says that increases the chances that DGA leaders could take on a greater political role.
They "would be able to do more at the federal level than just get out the vote and other things related to governors' races, and they could have an impact on the presidential campaign," Allison said.
Whether they would is anyone's guess, he said. "It's not crazy to think that's something they would be thinking about."
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