The cards began arriving in voters' mailboxes and with the daily newspaper shortly before the 2010 election.
They said: "(Lincoln Sen.) Danielle Conrad has raised taxes on every family and business in Nebraska. ... She even voted to override Gov. Heineman's veto of legislation that increased the gas tax (2008:LB959)."
They also said things like this: "Roughly 1,000 more Lincoln residents are searching for a job today than when Danielle Conrad took office" and noted other votes she made in the Legislature.
The mailings were from the conservative, Virginia-based group Americans for Prosperity. According to the group's website, AFP and its foundation "are committed to educating citizens about economic policy and mobilizing those citizens as advocates in the public policy process. AFP is an organization of grassroots leaders who engage citizens in the name of limited government and free markets on the local, state and federal levels. The grassroots activists of AFP advocate for public policies that champion the principles of entrepreneurship and fiscal and regulatory restraint."
But because they did not openly urge people to vote for or against a political candidate, AFP maintains it does not have to disclose how much money it spent on the mailings criticizing the record of Conrad and other lawmakers -- something required of candidates, political action committees and independent committees formed by interest groups.
"AFP has found a way to avoid all Nebraska's disclosure laws," said Jack Gould, spokesman for the Nebraska chapter of the political watchdog group Common Cause.
"By ... claiming their carefully worded attack ads are only educational, they are distorting political campaigns to the point that public trust is lost," Gould said. "AFP may be the first of many 'corporate entities' that will ... ambush candidates from as far away as Virginia. Every individual and organization has a right to speak, but big money gets to speak louder and more often. The public has a right to know who is speaking and how much money they are spending."
Lincoln Sen. Bill Avery has introduced a bill (LB606) that would incorporate much of the terminology in federal election law into Nebraska statutes to make sure money spent on things like the AFP mailings is publicly reported.
"I'm not doing this to get even with anybody," said Avery, who has designated the measure as his priority bill this session. "This is all about transparency and accountability."
In a December letter to Frank Daley, executive director of the Nebraska Accountability and Disclosure Commission, AFP outlined why it believes it is not subject to the state's campaign reporting laws.
"AFP's communications are not distributed 'in assistance of, or in opposition to, the nomination or election of a candidate,'" wrote AFP lawyer Jason Torchinsky. "Rather, AFP's communications are distributed to inform citizens of certain aspects of legislative records, cite specific pieces of legislation and discuss policy implications. A communication that merely informs citizens of a legislator's record does not constitute 'express advocacy,' and does not 'assist' or 'oppose' the election of a candidate."
While AFP's mailings did not specifically support or oppose a particular candidate, they called into question the voting records of Conrad and Sens. Kent Rogert of Tekamah and Norm Wallman of Cortland -- all Democrats seeking re-election to the nonpartisan Legislature.
The gas tax-veto override mentioned in the AFP mailings passed by a 34-15 vote and helped pay for road projects around the state. The eight Republicans among the 24 who voted for the override and faced re-election in 2010 all told the Journal Star they had no knowledge AFP publicly called them out on their vote.
Conrad and Wallman rebuffed the AFP attacks and won second terms. Rogert, who was defeated, has estimated that AFP spent $30,000 against him.
Political campaigns, political action committees and independent committees formed by interest groups are required to file campaign spending reports 30 days and 10 days before elections. And they are required to report any money they spend in the last 10 days before and within two days. The idea is to give political opponents an idea of how much they might have to spend to counter opposition ads.
Corporations and groups like AFP were emboldened by a 2010 ruling from the U.S. Supreme Court that reversed decades of precedent by lifting restrictions on campaign spending by for-profit corporations and the 501(c)(4) "social advocacy organizations" such as AFP.
The case stemmed from a challenge by the conservative, nonprofit group Citizens United of a Federal Election Commission ruling that it could not run commercials promoting its documentary critical of Hillary Clinton, who was seeking the Democratic presidential nomination.
The Supreme Court ruled banning corporations from spending money for "express advocacy" was unconstitutional.
Before the ruling, corporations that wanted to spend money for or against a candidate were required to do so through political-action committees, which are subject to federal and state election spending and reporting rules.
Before the 2010 ruling, the so-called McCain-Feingold Act restricted independent expenditures made by corporations, trade associations, unions and nonprofits in the run-up to elections. The law banned them from spending money on advertisements 30 days before a primary election and 60 days before a general election.
In 2003, the high court upheld such rules regarding "electioneering communication" for corporations and unions in a case called McConnell v. Federal Election Commission. The foundation of that ruling was a 1990 decision (Austin v. Michigan Chamber of Commerce) in which the court said: "Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures."
That ruling was expressly overruled in the Citizens United case.
So just who is behind AFP?
The group is heavily financed by billionaire brothers Charles and David Koch, who have been active in supporting Wisconsin Gov. Scott Walker's crusade against collective bargaining rights for public workers. David Koch, who lives in New York, has been a major contributor to the tea party and to term-limit movements.
"The heart and soul of AFP and AFP Foundation are our citizen activists," its website says. "They organize events, write letters to the editor, and petition their lawmakers to uphold freedom and prosperity. Americans for Prosperity and Americans for Prosperity Foundation have more than 1,600,000 activists, in all 50 states, and 31 state chapters and affiliates. More than 80,000 Americans in all 50 states have made a financial contribution to AFP or AFP Foundation."
Americans for Prosperity is registered as a nonprofit foreign corporation with the Nebraska Secretary of State's office.
It lists its main address in Arlington, Va., and local address as: CSC-Lawyers Incorporating Service Co., Suite 1900, 233 S. 13th St. in Lincoln, which is a drop box at the law firm of Cline, Williams, Wright, Johnson & Oldfather, LLP.
The law firm has nothing to do with Americans for Prosperity. CSC contracts with an entity, usually a law firm, in each state to act as a receiver for companies that want to do business in a state but have no office there. CSC accepts things like certified letters containing a summons, or a subpoena, or a notice that needs to be served on a registered agent.
The secretary of state lists AFP's president as Tim Phillips, who has an Arlington, Va., address, as do all the other officers.
Mike Friend, a former state senator and now director of the Nebraska chapter of AFP, said Avery's bill "appears to be yet another measure geared to confuse people about free speech rights guaranteed to them by the First Amendment to the Constitution of the United States."
"Either way, Americans for Prosperity will continue to help mobilize and educate citizens to make their voices effectively heard in public policy issue campaigns," he said.
Reach Kevin O'Hanlon at 402-473-2682 or email@example.com
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