Rock Springs Investigation Shows the Dark Side of Campaign Finance Laws

In the 2018 Budget Session, the Wyoming Legislature passed a bill that clarified the enforcement process of state campaign finance laws. In local elections, citizens may now file complaints with their county clerk, who may refer the complaint to the district attorney for investigation and prosecution. A recent episode in Rock Springs shows the dark side of so-called campaign finance "reform"—all too often, these laws are not used to investigate and prosecute political corruption, but to punish or retaliate against free speech, undermining citizens' First Amendment rights.

On October 31, 2018, Bruce Pivic, owner of Wyo4News, published a roughly 2,600-word opinion piece on the channel's website that was critical of Tim Kaumo, who was a little over a week away from being elected mayor of Rock Springs. Kaumo previously served two terms in the position, which ended about eight years ago. Pivic stated "I do believe that Tim has had his time and that the city needs a new face with new ideas to bring Rock Springs into the 21^st century[,]" and criticized Kaumo for allegedly seeking to eliminate the positions of City HR Director and City Public Works Director. Pivic also criticized the results of Kaumo's previous service, lauded himself (apparently Pivic has, among other things, "given away 6,000 teddy bears and 1,500 bikes") and, finally, endorsed Kaumo's opponent Ryan Greene. Pivic's piece comes off as a particularly long-winded example of politics in a small town, but more of a vanity project that should have been easily forgotten, especially following Kaumo's election.

But a few days after Pivic published his piece, just before the election "A Group of Employees of the City of Rock Springs" responded to it with an article on the website SweetwaterNow. It counters a number of Pivic's points and alleges numerous problems within the city government, some that are alarming. For example, the employees claim:

A former department head made illegal decisions with the Mayor regarding the Events Complex, putting hundreds of lives at risk and mismanaged City contracts worth over 4.5 million dollars. Codes and ordinances have been waived, changed, or employees have been directed to ignore the law.

While at one point defending Kaumo's previous service, the piece did not explicitly or even implicitly endorse him. Whether the employees' allegations are true or not, the letter does not read anything close to a campaign ad, or even an op/ed or letter to the editor around election time, but instead as a list of problems in Rock Springs government. That is, it reads like whistleblowing.

Rather than enter this budding discussion, some members of the Rock Springs City Council filed a campaign finance complaint, and the county clerk and County Attorney Daniel Erramouspe found it to be worth investigating. The investigation finally concluded in late January, with Erramouspe deciding not to bring charges and instead to publish his reasoning and the names of the "group of employees" in a press release. His interpretation of the law is, charitably speaking, questionable:

Through the investigation, it was determined that SweetwaterNOW had a campaign advertising policy of deeming every campaign article an advertisement, and therefore charged a fee to publish. Regardless of whether the article was an opinion piece, endorsement letter, or cycled ad, SweetwaterNOW treated it as advertising. This policy was distinct to SweetwaterNOW as other media outlets did not follow the same guideline. Therefore, when the "employees of the city of Rock Springs" paid SweetwaterNOW to publish the opinion letter refuting the piece in Wyo4news and supporting mayoral candidate Kaumo, they essentially contributed anonymously to his campaign. This was a violation of Wyoming Campaign Finance Law, Wyoming Statute § 22-25-110.

This makes next to no sense. Although "campaign literature" and "campaign advertising" are not defined in the law cited above (or anywhere in the Wyoming Election Code), citizens must—pursuant to more than forty years of Supreme Court decisions addressing campaign finance law—actually engage in some kind of electoral speech to come under the purview of these laws. Moreover, the employees' article certainly was not an "independent expenditure", which is also referenced in the law above and, in any event, requires a threshold of $500 of spending before reporting requirements begin. (An e-mail with SweetwaterNow confirmed that employees' letter cost $250 to publish.) Finally, to suggest that the article in any way constituted "contribut[ing] anonymously to [Kaumo's] campaign" by merely defending Kaumo's record is a baffling and chilling reading of the law: only in the most narrow circumstances can one's political activity become a de facto contribution to a campaign, none of which were present here.

Alas, Erramouspe's release only gets stranger:

It was learned those employees behind the letter were unaware that their actions constituted a violation of campaign finance laws. Their intention was to write an opinion piece, and they were unaware that paying to have that document published was essentially contributing to a campaign. They admitted that they were not a PAC, nor did they publish their respective names.

This largely reiterates the first paragraph, but to suggest this group of individuals "admitted" they were not a PAC implies that they were a political committee under the law. The lack of a definition (a persistent theme in the Wyoming Election Code) remains a gaping hole in the statutes, but a cursory review of recent federal cases—several of them in the Tenth Circuit Court of Appeals, which has jurisdiction over Wyoming—affirms that one cannot call a group of people a PAC for spending so little money. Such a group must also have the major purpose of engaging in elections.

It is almost as if nobody in Erramouspe's office could be bothered to do but an hour or so of research before or during the investigation. It never should have happened.

Erramouspe got one thing right: criminal charges for Wyoming campaign finance violations require one to behave knowingly and willfully, which means one must know the law and consciously decide to break it to be convicted. But deciding not to prosecute here is hardly an act of benevolence or prosecutorial discretion.

I will not call Erramouspe or certain complaining city council members corrupt. The problem is that anyone who really did want to punish this group of employees for speaking out could not have done a better job of it. Campaign finance law is complex, but any defense attorney worth his salt would find Erramouspe's interpretation and application of the laws a farce, with a judge likely agreeing to dismiss the charges, had any actually been brought. By ending with the press release here, the government got to flush out anonymous speech under the guise of "campaign finance" without having to confront that it is unconstitutional to even investigate anonymous political speech that is so far removed from campaigning.

Publishing an anonymous letter that criticizes the government—even one that's paid for—is not a corrupt behavior that campaign finance law has ever been allowed to regulate. As Wyoming continues to amend its election laws to regulate more political speech, rhetoric about "money in politics" should be tempered with the reality that these laws too often punish people for merely participating in politics.

--

Stephen Klein is a partner with the law firm Statecraft PLLC in Washington, DC. He has lobbied on behalf of the Wyoming Liberty Group regarding campaign finance laws for the better part of a decade, with mixed results. He has served as co-counsel in five free speech lawsuits in Wyoming alone; four of them were victorious.