Kulongoski campaign and the 1st Amendment

The Kulongoski campaign filed an election law violation complaint against BrainstormNW Magazine for having the audacity to distribute its editorial endorsing Ron Saxton for Governor.

I'm not kidding.

A few weeks ago, Brainstorm distributed its endorsement editorial by inserting it into an issue of the Oregonian. Kulongoski claims that Brainstorm should report the amount it paid the Oregonian as an "In-kind" contribution to the Saxton campaign, or as an "independent expenditure."

Here's the problem: BrainstormNW Magazine is a media outlet, and Oregon election law specifically excludes their endorsements and editorials from being classified as "contributions" to campaigns. Here is the relevant statutory language:

ORS 260.007(1):
“As used in this chapter, “contribute,” “contribution,” “expend” or “expenditure” does not include any written news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, or magazine or other regularly published publication, unless a political committee owns the facility.”

Well, that should settle it, right? It couldn't be any more clear. BrainstormNW wrote an editorial, and distributed it through the facilities of a newspaper. Not a contribution, no report necessary.

Sure, if you trust our Secretary of State to follow the law. What if the SOS decides, as he has in the past, to ignore the plainly worded statutes, and rule that BrainstormNW should have reported the expenditure? Well, then Brainstorm would be on the hook for a fine of 1% for each day that the report was late.

The fact that they might dispute the complaint doesn't stop the 1% clock from ticking, so if the investigation and ruling takes 100 days, and the SOS rules that a report is necessary, then Brainstorm is on the hook to pay a fine of 100% of the amount they paid to distribute the editorial!

That is why almost everybody, when faced with a similar complaint, just files the report, and if the SOS later rules it was unnecessary, fine. If it rules the report was needed, then at least they minimized the fine by filing the report on the front end and stopping the 1% clock.

So BrainstormNW has the Hobson's choice of either filing the report now, or betting on the integrity of the most partisan Secretary of State in the history of Oregon, otherwise they could be fined tens of thousands of dollars.

So what is the big deal, you might ask? Just file the stupid report. Well, that is exactly what the Democrats want. They want to be able to portray BrainstormNW as a tool of the Republican party. If they file the contribution report, forevermore the Democrats will be able to dismiss BrainstormNW Magazine by pointing to the "fact" that this media outlet even made a contribution to a Republican candidate for governor!

That is the end game here for the Democrats. Use the election laws to trample all over the 1st Amendment, giving a small conservative magazine the choice: Either "admit" you are a tool of the Republicans or face the possibility of crippling fines.

But wait there's more!

There are two ways that Brainstorm could report the expenditure - either as an "in-kind," or as an "independent" expenditure. Each has definitions.

An in-kind contribution is for such things as if a campaign uses a company's office space or phone system for free. The value of the office space or the cost of the phones are reported as an in-kind contribution by the company, and then is also reported by the campaign on its reports. What Brainstorm did by paying to distribute its editorial hardly falls into this category. They didn't coordinate it with the campaign, and certainly didn't do it at the campaign's request.

So, they could report it as an independent expenditure, right? Sure, if, once again, they trusted Bill Bradbury. The rules for an independent expenditure are that it cannot be coordinated with the campaign. So when someone does an independent expenditure on behalf of a campaign, they make sure there is NO COMMUNICATION between the campaign and the entity doing the expenditure, just so there is no question about its independence.

That is because the penalties for claiming an expenditure as independent when there was some kind of coordination are severe - it is a felony penalized by fines and jail time.

So if Brainstorm was to report this as an independent expenditure, it leaves itself open to Bill Bradbury shenanigans. Obviously Brainstorm had communication with the Saxton campaign - not about distributing their editorial, but about lots of campaign issues over the months.

But if Brainstorm reports this as an independent expenditure, nothing would prevent the Kulongoski campaign from challenging the independent status of the "expenditure," and triggering an investigation by Bradbury, who would then be able to question every e-mail and phone call between Brainstorm and the Saxton campaign, and claim it showed coordination.

Which would be a felony. For being a media outlet.

So what choice does BrainstormNW have? This is basically the government with its jack-boot on the neck of a small business, forcing it to willingly "confess" or face fines or jail time or both.

Led by our Governor.

I guess we should not be surprised. If he is corrupt enough to knowingly involve a child-molester in his administration because of the political influence he brings, then Kulongoski wouldn't think twice about using every instrument of government available to him to stifle opposing viewpoints from being distributed.

Totalitarian? Right out of the left's playbook.