Posted: Oct. 27, 2010
NONE OF YOUR BUSINESS WHO PAID FOR THIS AD
By Celia Cohen
Political mailings of mysterious origin are being sent to attack Democratic state representatives.
There is no "paid for" line. There is nothing to indicate someone or some group taking responsibility for the contents of the advertising. There is only a sketchy return address.
"P.O. Box 1180, Newark, DE 19715."
The Democrats are calling the mailings the "post office box" pieces because they are at a loss to know how to characterize them otherwise. They are baffled by where they are coming from. All they know is, there are a lot of them.
At last count, there were about 20 batches of these colorful, oversized, generally negative postcards flying into districts all over Delaware. They are mostly showing up in the races critical to deciding the majority of the state House of Representatives.
The intensity is understandable. The Democrats took control of the House in 2008 after 24 years in the minority. They outnumber the Republicans by 24-17, but enough seats are in play for the Republicans to make a run at the majority in 2010.
Some of the House Democrats hit by the mailings are Dennis Edward Williams in Brandywine Hundred, Mike Barbieri near Newark, Quinn Johnson in Middletown, Brad Bennett in Dover and Pete Schwartzkopf, the majority leader, in Rehoboth Beach.
The post office box pieces are perfectly legal. Cleverly and utterly legal.
The mailings are carefully designed to fall outside the elaborate campaign finance system overseeing candidates, parties and other political organizations and requiring them to disclose their contributions and expenditures.
The senders are relying on the protection of the First Amendment right to freedom of speech.
They can get away with anonymity because of a 1995 attorney general's opinion, citing the U.S. Supreme Court, that people engaged in "pure political speech" do not have to identify themselves.
They can get away with collecting and spending as much money as they want, along with keeping it a secret, because the mailings are "issue advocacy." These are the type of political pieces that stop short of telling people to vote "for" or "against" but urge them to "call" so-and-so.
Issue advocacy, according to another attorney general's opinion from 2000, is "core First Amendment speech" that is "beyond" regulation.
So there it is. The post office box pieces are out of the reach of government. Not to mention fair play.
"It's beyond my control, and I'm sorry it is. I have no investigatory power and no authority to do anything if I did. My hands are essentially tied," said Elaine Manlove, the election commissioner.
Most of the mailings attack the Democratic representatives for voting for tax increases. One of them reads, "Call Pete Schwartzkopf and tell him to stop hitting Delaware businesses with his job-killing taxes and fees."
An occasional post office box piece is positive, like the one about Terry Spence, the former Republican speaker running in a rematch against Barbieri. It reads, "Dover is raising our taxes and spending more of our money. Terry Spence has a plan to stop it."
Although it is impossible to know the cost of the mailings without any campaign finance reporting, one Democratic estimate put it somewhere between $60,000 and $80,000.
The Democrats are frustrated and indignant.
"I think the public should know. I think when anyone sends out campaign literature, even an advocacy group, they should tell people who they are. They're doing it because they're trying to get around the intent and spirit of campaign disclosure," said Bob Gilligan, the Democratic speaker.
"We passed the Freedom of Information Act. We passed open government when we took the majority, and here they are, campaigning in the dark."
Republican officialdom is disavowing any participation in the post office box pieces. "Whoever it is has kept it very far away from Republican headquarters," said Priscilla Rakestraw, the Republican national committeewoman.
Suspicion has fallen on Charlie Copeland, the former Senate Republican minority leader who left the legislature in 2008 to run for lieutenant governor. He is also the mastermind behind LEAD PAC, a political action committee that took issue advocacy to a new level in Delaware when it was launched four years ago, collecting and spending money at will.
It does not hurt that Copeland can turn to fellow du Pont family members for contributions.
LEAD PAC is out there again this campaign season. It is carpet bombing the districts of Patti Blevins, Nancy Cook and Dave Sokola, all Democratic senators, with accusatory mailings.
None of it, however, has shown up on LEAD PAC's campaign finance reports, apparently because it can be separated out as issue advocacy. Copeland did not return telephone messages left over two days to get an explanation.
It would seem to be a natural escalation from LEAD PAC to the post office box pieces, but there is no way of knowing who decided to go there.
The Constitution protects the right to freedom of speech, but not to transparency and accountability.