Katherine Knox (207) 228-7229 [email protected] Isabel Mullin (207) 228-7336 direct [email protected] January 23, 2018 Jonathan Wayne Executive Director Maine Commission on Governmental Ethics and Election Practices 135 State House Station Augusta, ME 04333 Re: Request for Investigation into Campaign Finance Violations by the Maine Examiner and Maine Republican Party Dear Mr. Wayne: On behalf of my client, Maine Democratic Party, and pursuant to 21-A M.R.S. § 1003(2) and 94-270 C.M.R. ch.1, § 4(2)(C), I write to request that the Commission investigate the activities and the entities named above for violations of campaign finance law. As demonstrated below, the Maine Democratic Party believes that the evidence enumerated in this letter provides the Commission with more than sufficient grounds for believing that violations have occurred and we ask that an investigation be immediately commenced. THE MAINE EXAMINER The Maine Examiner purports to be “a small group of Mainers who simply publish Maine news, trends and interesting pieces about you, the people of Maine.” (Attachment A.) However, the Maine Examiner website and social media pages are all anonymous. There is no information provided about the authors, publishers, funders, or any other individual associated with Maine Examiner. The byline of each story it publishes simply reads “Administrator” or “The Maine Examiner.” (Attachments R, S, T, U, V, W, X, & Y.) The organization first began operating its website on September 11, 2017, shortly before the 2017 general election. (Attachment D.) The domain was privately registered using Jonathan Wayne January 19, 2018 Page 2 a private registration service called Domains by Proxy, which conceals the identity of the individual(s) who created and operate the website. (Attachments D & E.) It also operates a Facebook page and a Twitter account. Its first Facebook post was on September 13, 2017. (Attachment F.) Its Twitter account was created on September 15, 2017. (Attachment G.) Neither the Maine Examiner Facebook page nor its Twitter account identifies the individuals who write or post information or who are otherwise affiliated with the organization. The Maine Examiner has not filed a Certificate of Existence with the Maine Department of the Secretary of State. (Attachments B & C.) The Maine Examiner has declined interview requests from the Bangor Daily News, The Portland Press Herald, and the Boston Globe. Its email responses to the requests were anonymous. (Attachments Z, Y, & Z.) 1) The Maine Examiner likely made independent expenditures without properly reporting those to the City of Lewiston. The Maine Examiner published a series of seven stories about Ben Chin during the first two weeks of December 2017. The stories made inflammatory claims about Mr. Chin and attempted to disparage his character. These stories were all published and shared on Facebook shortly before the mayoral runoff election in Lewiston between Mr. Chin and a member of the Republican Party. The election took place on December 12, 2017 and the first story was posted on December 3rd, the second on December 4th, the third on December 5th, the fourth and fifth on December 7th, the sixth on December 8th, and the seventh on December 10th. (Attachments H, I, J, K, L, M, N, R, S, T, U, V, W, & X.) Under Maine law, an independent expenditure is defined as “any expenditure made by a person, party committee, political committee or political action committee, other than by contribution to a candidate or a candidate’s authorized political committee, for any communication that expressly advocates the election or defeat of a clearly identified candidate[.]” 21-A M.R.S. § 1019-B(1). An expenditure is presumed to be an “independent expenditure” when it is “made to design, produce or disseminate a communication that names or depicts a clearly identified candidate and is disseminated during the . 35 days, including election day, before a special election; or from Labor Day to a general election day.” Id. The stories published by the Maine Examiner and shared on its Facebook page identify Mr. Chin by name and picture and discuss his candidacy for mayor. For example the story published December 3rd concludes as follows: “Chin is the political director of the Maine People’s Alliance, a liberal political group, and works as a lobbyist in Augusta. Chin’s opponent is Shane Bouchard, a Lewiston small-business owner. The election for Mayor of Lewiston is on December 12.” (Attachment R.) The six other stories all end in a similar manner, but also identify Mr. Chin’s opponent as a Lewiston native and city councilor. The stories were all Jonathan Wayne January 19, 2018 Page 3 published within the time period for which the “independent expenditure” presumption is applied. A person or organization who makes an independent expenditure in excess of $250 in a municipal election must file a report with the municipality detailing the expenditure. §1019-B(4). It is likely that the expenditures on these stories and their dissemination were more than $250 given the amount of research that is required to write such pieces, the work that is needed to verify the authenticity of the emails, the extent to which the stories were circulated online, and the sheer level of activity on the Maine Examiner’s website and Facebook page around these stories. When an independent expenditure is made within two weeks of an election, the report is due within one calendar day of the expenditure. 94-270 C.M.R. ch.1, § 10(3)(B)(3). Reports, therefore, were likely due for these expenditures on December 4th, 5th, 6th, 8th, and 11th.1 As of today, January 23, 2018, the reports are now between 43 and 50 days late. The The Maine Examiner has never filed a report with the City of Lewiston. 2) The Maine Examiner has likely not complied with the disclosure requirements for political communications or independent expenditures. Maine law also requires that any communication “that names or depicts a clearly identified candidate and that is disseminated during the . 35 days before a general election” include “the name and address of the person who made or financed the communication and a statement that the communication was or was not authorized by the candidate . .” § 1014(2-A). The Maine Examiner did not include its address or a statement about whether or not a candidate authorized the communication in any of the seven stories about Mr. Chin. An independent expenditure must also conspicuously include the top three funders of the organization. The Maine Examiner failed to disclose this information in its stories about Mr. Chin. 3) Independent Expenditures at issue are not exempted from reporting requirements by either the internet communication exception or press exemption. a) Internet Communications Exception The political communication and independent expenditure disclosure requirements do not apply to certain internet and email activities costing less than $100 if paid for by one 1 For expenditures related to municipal elections, reports may be filed the next business day when the deadline falls on a weekend or holiday. 94-270 C.M.R. ch. 1, § 10(3)(B). Reports for the two stories published and shared on December 7th were both due December 8th and reports for the stories published and disseminated on December 8th and 10th were both due December 11th. Jonathan Wayne January 19, 2018 Page 4 or more individuals and if those individuals are acting independently of “a candidate, candidate’s authorized campaign committee, party committee, political action committee or ballot question committee or an agent of a candidate, candidate’s authorized campaign committee, party committee, political action committee or ballot question committee.” 21-A M.R.S. § 1014(6)(C); 94-270 C.M.R. ch.1, § 7(9)(B). This exception does not apply to the Maine Examiner because it is an organization—not an individual or group of individuals—and because there is reason to believe the organization may have been acting in concert with a party committee, the Maine Republican Party (“The Party”). In addition, the communications likely cost over $100. The Party is a state party committee required to register and file campaign finance reports with the Commission pursuant to 21-A M.R.S. §§ 1013-A and 1017-A. The Party is a sophisticated political organization with full time staff and legal advisors. It is fully aware of Maine’s independent expenditure and political communications disclosure requirements. Despite that knowledge it shared three of the Maine Examiner’s stories about Mr. Chin on its Facebook page even though none of them complied with Maine’s political communications disclosure laws. (Attachments O, P, & Q.) The Party’s January Quarterly report listed its expenditures between October 1, 2017 and December 31, 2017. (Attachment CC.) The report did not include any expenditures made to support or oppose candidates. However, the report lists seven individual Facebook advertising expenditures made between the dates of December 6th and December 13th, 2017 as “operating expenses.” The Party did not report any other Facebook advertisement expenditures during the quarter or during the prior. The dates of the expenditures correspond with the exact time period in which the Maine Examiner published the seven stories and posted them on its Facebook page and the Maine Republican Party shared three of those stories on its own Facebook page. While the expenditures are all dated three or four days after the Maine Examiner stories were published and posted on its Facebook page, we know from our own extensive experience with campaign finances that Facebook advertisement purchases normally appear on a bank statement three to four days after the transaction was done through Facebook. It possible that the timing of these “operating expenditures” and the Maine Examiner stories being shared on Facebook is a mere coincidence.