TV ad blitz for McBride under scrutiny [McBride and teachers union may face multi-millions in fines]

Posted on Sat, Jun. 07, 2003

TV ad blitz for McBride under scrutiny

BY PETER WALLSTEN AND LESLEY CLARK

pwallsten@herald.com

TALLAHASSEE - Florida elections regulators say there is good reason to believe that former Democratic gubernatorial nominee Bill McBride and the state's teachers union broke the law last year with a massive TV ad blitz that many believe led to McBride's stunning primary victory over former U.S. Attorney General Janet Reno.

The state's elections commission voted late last month to proceed with an investigation that could result in multimillion-dollar fines for McBride and a special company formed by the union to produce the ads.

The issue arose last year after the state Republican Party complained that the ad campaign violated state campaign finance laws limiting individual contributions to $500. The ad campaign is valued at $1.8 million.

The commission's vote comes as the Florida Education Association is smarting from a federal investigation into its most powerful stalwart, United Teachers of Dade President Pat Tornillo, who took credit during last year's election for helping to lead the charge to anoint McBride over Reno.

`POLITICAL PAYBACK'

Lawyers for McBride and the union were quick Friday to label the investigation a political vendetta by a Republican-led Florida Elections Commission loyal to Gov. Jeb Bush -- an arch-enemy of the teachers union -- who beat McBride handily to win reelection.

''It's political payback,'' said Robert Harper, a Tallahassee criminal defense lawyer representing McBride. ``Why would they do this in the face of an election that's long over?''

The ads, which flooded the state's major media markets during McBride's underdog primary campaign, touted the Tampa lawyer as the best candidate for teachers. The union leadership -- along with other party leaders -- decided early on that McBride stood a far better chance of defeating the governor in the general election than Reno. The strategy split the party's rank and file, angering Reno's South Florida base and, experts believe, led to low turnout in the general election among blacks and other loyal Democrats.

FREE SPEECH?

Harper and union lawyer Ron Meyer argued in telephone interviews Friday that the ads, which were drafted carefully to specifically avoid asking for viewers to ''vote'' for McBride, are legal free speech.

Both noted that the commission's staff was split on whether there was a violation, but Harper acknowledged that ``it's a close legal question.

''The majority of the courts have ruled in our favor on this kind of thing, so I think we're on firm legal ground,'' Harper added.

The dispute underscores an ongoing struggle in state politics over the blurry lines between the unregulated corporate and union donations known as ''soft money'' and the stricter limits placed on candidates.

A new federal law awaiting approval by the U.S. Supreme Court bans soft money in federal races, but Florida state campaigns still thrive on it.

If they are found guilty, McBride and the FEA-backed Quality Public Education Corp. could face hefty fines -- more than $5 million for McBride and $3 million for QPEC.

Elections commissioners reached this week by telephone said they were constrained by law from discussing details of a pending investigation.

The union's complaint of political payback led four commissioners with close Republican ties to recuse themselves from the proceedings involving McBride, including former Bush aide-turned lobbyist David Rancourt and GOP operative and lobbyist Rich Heffley. Bush replaced them with temporary members, leading to a vote finding ''probable cause'' to open a full-fledged investigation of the ad campaign.

Despite accusations of partisanship, one of the commission's Democratic members said Friday he agreed with the decision [to investigate].

''If you listen to the ads word for word, they walk a fine line,'' said commission member Jimmy Patronis Jr., whose family runs a prominent seafood restaurant in Panama City Beach. ''It's hair-splitting whether they are endorsing'' McBride.

CRUX OF ISSUE

For elections officials, the crux of the issue is whether McBride's campaign -- governed by the $500 per-donor limit -- and the teachers union, which raises unregulated soft money, coordinated their efforts. McBride and his aides said during the campaign last year that they did not coordinate with the union.

But elections commission documents obtained Friday by The Herald suggest a close tie. The records point out that the union hired McBride's own media consultant, David Doak, to produce the ads.

Doak in February told commission staff that he worked on the McBride campaign, and another consultant in his firm, Frank Wilkinson, handled QPEC.

Doak told investigators that his firm ''consciously and intentionally abstained from discussing the QPEC ad with members of the McBride campaign,'' according to commission records.

But the elections commission's general counsel, Phyllis Hampton, found that 'regardless of whether the members of [the Doak firm] did or did not discuss the QPEC ad with members of the McBride campaign, the ad is not an independent expenditure . . . because there was communication with the `media consultant.' ''

TRANSACTIONS

Between July and October 2002, QPEC collected $1.9 million from 45 contributors, the three largest being the FEA at $1.5 million, trial lawyer Wayne Hogan at $100,000 and trial lawyer Robert Kerrigan at $150,000. Both Hogan and Kerrigan were vocal McBride backers.

''If these entities or individuals had contributed directly to the McBride campaign, none could have contributed more than $500 per election,'' Hampton wrote.

Hampton went on to write that the ads were critical for McBride's recognition ``across the state of Florida, which was especially important since his primary opponent, Janet Reno, had much greater name recognition.''

''McBride's campaign went in a matter of weeks from virtual obscurity to the forerunner in the Democratic primary,'' Hampton wrote.

The commission documents noted that the FEA [FL Educators Assocation - teachers union] has been cleared on at least three similar charges in the past, but that one ruling sent a warning that ``future violations will be dealt with harshly.''

Here's what the SH*T has on this story:

http://heraldtribune.com/apps/pbcs.dll/article?AID=/20030607/NEWS/306070510/1017

This is a printer friendly version of an article from www.heraldtribune.com

Article published Jun 7, 2003
Elections panel finds violation in McBride ads
The Democrat could be fined $5.6 million for illegal contributions; his lawyer calls the vote "payback."

TALLAHASSEE -- Democratic challenger Bill McBride was thoroughly trounced in his bid last November to unseat incumbent Republican Gov. Jeb Bush.

And the defeat could prove to be a very expensive one. The state may force the Tampa attorney to pay millions in fines based on charges that he accepted illegal campaign contributions from the state's teachers union.

A state elections panel recently ruled that enough evidence exists to show that $1.88 million spent by a union subsidiary to help boost McBride against Bush and fellow Democrat Janet Reno violated state law.
The Florida Elections Commission has also voted that enough evidence exists to show that the Florida Education Association Quality Public Education Corp.-- which paid for slick television ads promoting McBride -- also broke state law.

The ads, which first started airing in July 2002, were considered a key factor in elevating the still-unknown McBride past the better-known Reno in the Democratic primary.

McBride could eventually be forced to pay a $1,000 penalty if he is ultimately found guilty of breaking the law. But he also could be fined as much as three times the amount of the illegal contribution, or $5.6 million.
McBride, in a statement released by his attorney, defended the ads as lawful and not a campaign contribution since they did not tell voters to elect McBride. Instead, he said, the ads told viewers that he had "been endorsed by Florida's teachers" and that "as governor, McBride will reduce class size and improve our schools."

"The Elections Commission thinks that the television announcement which stated that Florida's teachers endorsed Bill McBride should be regulated and penalized," said McBride. "I do not think the founders of our country intended that.
"I will defend the rights of the teachers of Florida, I will defend the people who worked on my campaign," he added. "I am confident that in the end it will be shown that the endorsement ad was entirely appropriate."
Party lines
Robert Harper, McBride's attorney, called the 6-3 vote by the Florida Elections Commission a "political payback," noting the vote was split between Democrats and Republicans. The initial complaint alleging that McBride and the teachers union had broken state law came from the Republican Party of Florida.

Geoffrey Becker, a spokesman for the Republican Party defended the decision, saying that four sitting members of the commission were asked to recuse themselves from the McBride vote because of their close ties to Bush and the Republican Party.
"I think it was about as clean as it gets in reviewing the electioneering that went on," said Becker. "I don't see how you can't see it as anything than a direct allocable contribution to the McBride campaign. They went way beyond the pale of following the law."

But it was Bush -- who appoints elections commission members -- who chose the four people who acted as substitute commissioners for the May 21 and 22 meetings.

Jill Bratina, communications director for Bush, said Friday that the governor followed established law in selecting the replacements and that he did not select anyone directly affiliated with the Republican Party. Additionally, Bratina said, Bush chose four lawyers. She said that all four substitutes were registered Republicans since they were replacing four Republican members.
The case hinges on whether McBride and the union broke the law that limits donations to candidates to no more than $500.

The law allows outside groups to spend as much money as they want on so-called issue ads as long as the ads do not call for the election or defeat of a candidate. These third-party ads have long been a source of controversy and legal wrangling back and forth over whether the government can regulate them.

The FEA set up a subsidiary to pay for the ads in July 2002. Elections commission records state that the FEA effort to help McBride was financed primarily by a $1.5 million contribution from the union as well as $100,000 from Jacksonville trial attorney Wayne Hogan and attorney Bob Kerrigan.
Election commissioners ruled that the union ads themselves did not meet the definition of campaign ads -- but they still ruled they acted as a contribution because of a link between the McBride campaign and the union.

Both McBride and the FEA affiliate used the same Washington, D.C., media consultant to produce television ads. David Doak of Doak, Carrier, O'Donnell & Associates, however, told state investigators that another member of his firm handled the FEA ads independent of work he did for McBride and that there was no coordination between the two.
The FEA group that paid for the ads could also face penalties and fines up to twice the amount of the contribution.

Ron Meyer, a lawyer representing the union, called the ruling a "political reprisal" and said commissioners had "misapplied the law." Meyer said his group plans to challenge the commission ruling in judicial proceedings and will fight to the very end to "make the point" that they did not break the law.

But he also said at the very least, commissioners should drop all charges against McBride.
"We did it; he didn't do it," said Meyer.

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