Posted: Oct. 17, 2006
REPUBLICANS CAN PAY FOR AS MUCH FREE SPEECH AS THEY WANT
By Celia Cohen
The Attorney General's Office has come down on the side of free speech, no matter how much it costs, in an advisory opinion that lets the Delaware Republican Party proceed as aggressively as it wants with political advertising in the attorney general's race.
The legality of the Republicans' activity was challenged by the Democratic Party, which filed an inquiry through the state elections commissioner about Republican television and radio spots that have set the tone in a rowdy contest between Republican Ferris W. Wharton and Democrat Joseph R. "Beau" Biden III.
The Republicans will not say how much they are spending to air their provocative messages -- Shouldn't Delaware's attorney general be a Delaware lawyer for at least five years? -- but it appears to be considerable. The party's financial disclosure reports show it has paid more than $271,000 to MH Media, the political consulting firm handling Wharton's account.
Whatever the Republicans spent, the Democrats suggested it far exceeded a contribution limit of $25,000 that a political party is allowed to give under state law to a candidate for attorney general.
The Republicans said they were doing nothing wrong, because the advertising was an expenditure by the party, not a contribution to a candidate, and they had an earlier advisory opinion by the Attorney General's Office in 2000 to back them up.
It turns out the Republicans did their homework, and they were right. "The attorney general's opinion is correct. They did the research, and they came to the right conclusion," said Richard A. Forsten, a lawyer for the party.
Charles J. Durante, a lawyer who is a past parliamentarian for the state Democratic Party, was not ready to concede the issue. Durante called the attorney general's advisory opinion "back-of-the-envelope" reasoning, produced under pressure from the state elections commissioner's office, which wanted a quick turnaround with the election approaching on Nov. 7.
The Democrats' request for a ruling was submitted last Tuesday, and the elections commissioner wanted the advisory opinion two days later. (The matter passed through the Attorney General's Office without crossing the desk of Attorney General Carl C. Danberg, a Democrat who endorsed Biden and said he would remove himself from any legal questions in the race. Danberg was appointed to the office last year when Republican Attorney General M. Jane Brady became a judge.)
"It's frustrating to have a major issue in campaign finance having to be resolved on such short notice. It would be best if the question were resolved without those deadlines, either by the legislature or an advisory opinion by the Supreme Court," Durante said.
The Democrats also had questioned the content of the Republicans' advertising, which appeared to the Democrats to cross a legal line that lets parties pay for spots advocating issues but not expressly advocating for or against candidates. According to the attorney general's advisory opinion, the Republicans were walking the line, not crossing it.
On this point, the Democrats seem to have experienced some amnesia, because they used similar language two years ago for mailers in the race between Democratic Gov. Ruth Ann Minner and Republican William Swain Lee.
Similar to the Republicans' wording this year -- Call Beau Biden, tell him the attorney general isn't just another politician -- the Democrats in 2004 went after Bill Lee for a 30-year-old default on a business loan, saying on one of those oversized postcards, Call Bill Lee, ask him why we should trust him with Delaware's budget if he can't manage his own finances.
Richard H. Bayard, who was the Democratic state chair in 2004, politely shuffled a question about the mailers to Durante, who was the party's lawyer at the time, but Durante said he was not involved. "They didn't ask me about that," he said.
Not surprisingly, the Democrats have proved to be as practiced as the Republicans in creating a sky-high advertising budget for a favored candidate. To promote Minner in 2004, they took advantage of a legal loophole that lets parties dispense unlimited sums on behalf of five or more candidates.
For example, the Democrats distributed campaign literature entirely focused on Minner -- except for tiny print mentioning five other candidates, in one case listing Lt. Gov. John C. Carney Jr., Insurance Commissioner Matthew P. Denn and three New Castle County candidates.
The attorney general's new advisory opinion made immediate winners out of the Republicans. Not only were they able to continue their advertising blitz, but they foiled a chance to embarrass them by putting them on the wrong side of the law in the election to determine the state's top legal officer.
The advisory opinion also generated long-term winners, however. It potentially put astounding power into the hands of state Republican Chair Terry A. Strine, Democratic Chair John D. Daniello and future party chairs.
The advisory opinion institutionalizes a system that lets the parties take the lead in political advertising by collecting contributions and calling the shots. It is much easier for a party to raise money than a candidate, because state law allows individuals to give a maximum of $20,000 to a party but only $1,200 to a candidate during an election cycle.
In a political era that has elevated candidates over parties, there could be a reversal if candidates cede control of their political advertising, usually the costliest item in their budgets. Parties could gain a much larger say in how races are run and perhaps even in who runs for state offices.
Parties that can bring in the bucks at $20,000 a pop can call the tune -- and play it loudly, too.