By Dan Christensen, FloridaBulldog.org
Florida politics took the spotlight with significant developments in two stories the Florida Bulldog recently reported:
- Randal “Randy” Perkins, chairman and founder of Deerfield Beach-based government disaster contractor AshBritt, has handed over $125,000 to the Federal Election Commission to settle charges that AshBritt made an illegal $500,000 contribution to a pro-Trump super PAC. Payment of the hefty civil penalty avoided a possible referral of the case to the Justice Department for criminal prosecution.
- A Washington-based watchdog group has asked a federal judge to declare that the FEC’s July dismissal of its complaint alleging illegality against Sen. Rick Scott, R-FL, and a political action committee he led was “contrary to law” and order the FEC to reassess the case using a proper interpretation of the law.
The Campaign Legal Center filed the complaint against AshBritt and sued the FEC about its decision in Scott‘s case. The suit is on behalf of the End Citizens United PAC.
Ashbritt was accused in 2018 of violating the long-standing federal ban on pay-to-play contributions by making a $500,000 donation to America First Action, a pro-Trump super PAC. The law prohibits federal contractors from giving money to political committees to influence federal elections when they were negotiating or performing on contracts. At the time, AshBritt had several active contracts with the U.S. government, including a $41.7-million contract with the Defense Department, as well as another supplemental agreement valued at $459,675, “one day before AshBritt made the contribution to AFA,” according to an FEC Factual and Legal Analysis.
FEC WASN’T BUYING
The pro-Trump super PAC, America First Action, later refunded the $500,000 contribution to AshBritt and said the contribution was, in fact, a personal donation made by Perkins, not Ashbritt. Officers and employees of corporations are allowed by law to make contributions from their personal funds.
But the FEC wasn’t buying. “AshBritt asserts that the contribution was charged to Perkins’s ‘loan/distribution account’ [at the company] but provides no documents supporting its position, such as an affidavit, a copy of the contribution check, or a cover letter supporting the characterization of the funds as Perkins’s, not Ashbritt’s. There is no information in the record that the contribution appeared to be anything other than a contribution from AshBritt,” the FEC analysis says.
The FEC, however, did not find that the violation was “knowing and willful,” apparently accepting the explanation provided by AshBritt’s lawyer, Donald McGahn of the Jones Day law firm, that at the time of the contribution AshBritt believed that it was Perkins’s personal funds and that “the mistaken belief described herein was inadvertent,” according to a July 20 conciliation agreement made public last week. In addition to the payment by Perkins, AshBritt agreed to “implement new, additional internal controls, policies and procedures to prevent similar errors in the future.”
McGahn, White House counsel under former President Trump, gained notoriety in 2019 when, at the instruction of the White House, he defied a subpoena to testify before the House Judiciary Committee regarding Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election.
FEC SCOTT DECISION
As is typical of the often dysfunctional FEC, its partisan members dismissed in a July vote of 3-3 allegations that in 2018 Sen. Scott, the New Republican PAC he chaired, and PAC treasurer Gentry Collins violated the Federal Election Campaign Act (FECA), which bans federal candidates from collecting so-called “soft money” unless it is subject to the act’s “limitations, prohibitions and reporting requirements.”
Then Gov. Scott hadn’t declared himself a federal candidate when he raised more than $1.1 million from May to December 2017 while serving as chairman of New Republican – a PAC whose declared purpose was to “make the Republican Party Great Again” in support of President Trump. Much more was raised after Scott supposedly stepped down as chair.
But Trump never saw any of that money, or more than $25 million more the PAC raked in the months that followed. Nearly all of it was spent in support of Scott’s own candidacy.
But because New Republican was registered as an independent super PAC it could legally raise unlimited sums from corporations, unions and individuals, meaning the money it later poured into supporting Scott’s campaign – $29.5 million, nearly all spent on attacking incumbent Democrat Bill Nelson, who ultimately lost by about 10,000 votes out of nearly 8.2 million cast – was not subject to the normal limitations. Campaigns can collect up to $2,900 per election from individuals.
The lawsuit notes that the FEC’s nonpartisan general counsel’s office recommended that the commission find reason to believe Scott broke the law by failing to timely file paperwork about his candidacy and that the FEC conduct a full investigation. Yet “despite compelling evidence,” the FEC deadlocked along partisan lines and closed the case.
“The Commission’s refusal to enforce the law has allowed wealthy donors, including corporations, to sidestep FECA’s contribution limits by making unlimited contributions to a super PAC established, financed, maintained, or controlled by candidate Scott,” the lawsuit says. “Without enforcement…the integrity of our system of representative democracy is undermined.”
Likewise, the suit says, the FEC’s dismissal has deprived the public of “full disclosure” about “when Scott in fact became a candidate, the activities undertaken by Scott and his agents to control New Republican PAC, the amounts raised and spent by Scott and New Republican PAC to further Scott’s campaign before Scott declared his candidacy, the nature of the ongoing relationship between New Republican PAC and the Scott Campaign, and whether New Republican PAC’s expenditures should be deemed ‘coordinated’ with the Scott campaign.”
A court can determine that the Republican FEC members were relying on an incorrect interpretation of the law, determine the correct interpretation and order the Republicans to reassess the case given the new interpretation approved by the court.
For example, in 2016 Citizens for Responsibility and Ethics won a suit against the FEC for failing to enforce campaign finance laws against a pair of conservative political groups, Americans for Job Security and American Action Network, with ties to the wealthy conservative businessmen Charles and David Koch. The groups had been accused of not registering as political committees despite spending more than $20 million on political ads during the 2010 elections.
The FEC dismissed the case. A federal judge later overturned that decision, ruling “the controlling commissioners relied on a faulty legal premise” and “were thus ‘contrary to law.’ ”