American Tradition Partnership (a.k.a. ATP formerly known as Western Tradition Partnership or WTP) has a Supreme Court victory under its belt. Now the conservative advocacy group is under criminal investigation. Surprising coincidence? Not to anyone who was paying attention.
To understand the trouble that ATP is potentially in, you have to understand the concept of “coordinated expenditures.” This is a term of art in campaign finance law. Coordinated expenditures are the opposite of independent expenditures. An independent expenditure happens, for instance, when an individual (or entity) buys an ad in support of a candidate without working with that candidate on the ad. Independent expenditures can be funded by unlimited sources thanks to a few Supreme Court cases (Buckley v. Valeo freed individuals to spend, Colorado Republican I freed political parties to spend, and Citizens United freed corporations and unions to spend).
By contrast, a coordinated expenditure (where the spender is in cahoots with the candidate in creating a political ad) is deemed to be a contribution to the candidate under federal and most state laws. This can lead to two potential legal problems. First, if the cost of the ad is bigger than the applicable contribution limit, then the big coordinated expenditure illegally busts the limit. Secondly, source restrictions still apply to contributions federally and in roughly half the states. Corporations cannot give to federal candidates. Thus, corporations also cannot conduct coordinated expenditures with federal candidates.
This is what American Tradition Partnership may have been up to – illegally coordinating with candidates. So how did this alleged coordination come to light in a dark money group?
Let me back up and tell you what we know and what we don’t know about them. They were founded in 2008. Reportedly, when they sought their 501(c)(4) status, they told the IRS that they would not engage in electoral politics. Democracy 21 and the Campaign Legal Center have asked the IRS to investigate this discrepancy.
I first heard about them back in 2011 because they were challenging Montana’s nearly century old ban on corporate political expenditures post-Citizens United because they wanted to spend in Montana elections. Western Tradition Partnership v. Bullock was an interesting case because Montana had a demonstrable history of corporate corruption going back to the reign of the Copper Kings at the turn of the 20th century. If any state could keep their corporate expenditure ban, this would be the one.
Meanwhile, as documented in the Montana Supreme Court case, then-Western Tradition Partnership bragged to potential donors:
Finally, we’re not required to report the name or the amount of any contribution that we receive. So, if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible. The only thing we plan on reporting is our success to contributors like you who can see the benefits of a program like this. You can just sit back on election night and see what a difference you’ve made. [Editor’s note: emphasis added]
In the face of this evidence, and given Montana’s history of corruption, the Montana’s Supreme Court upheld Montana’s corporate ban from 1912.
ATP then appealed this to the U.S. Supreme Court, which refused to grant an oral argument and instead summarily reversed the Montana Supreme Court 5–4. The fact that the high court didn’t grant an oral argument is tragic. Lost was an opportunity to reconsider the wisdom of Citizens United and lost too was an opportunity to kick the tires of the shadowy lead plaintiff.
While the U.S. Supreme Court case was pending, something odd happened. Some American Tradition Partnership documents ended up in a house in Denver where methamphetamines were being sold. (You may have heard of this as the dark money “meth house documents” in the news.)
The documents appeared to be related to elections in Montana and were delivered to the Commissioner of Political Practices who regulates campaign finance in Montana. One folder in the box was ominously named: “Montana $ Bomb.” This was all documented by Frontline with the help of NPR’s Kai Ryssdal and Pro Publica (for which they won an Emmy). According to a man named Christian LeFer, who worked with ATP, the documents were stolen from his wife’s car.
After the Frontline piece aired, in a twist worthy of a bad pulp fiction novel, the offices of the Montana Commissioner of Political Practices experienced a break-in. Whether the break-in was an attempt to raid this box of ATP documents is still unknown. But the clever Commissioner had already placed the ATP box in a different secure location before the break-in occurred.
Mr. LeFer and his wife sued to get the ATP documents back from Montana. Federal judge Donald Molloy last month dismissed the case with prejudice. In a colorful order, the judge reported that the documents are alleged to be evidence of violations of “federal and state laws governing elections and campaign finance” and are with a federal grand jury in Montana. He also stated that the LeFers and their counsel had engaged in “political theatre rather than legitimate legal practice.” As a result the LeFers do not get custody of the ATP documents, and now they owe the Montana Commissioner legal fees and costs.
What crime the grand jury is investigating about ATP is not perfectly clear. But a review of the tape from Frontline shows what appears to be illegal coordination between American Tradition Partnership and candidates for office. Only time will tell what was really going on with this dark money group. To review ATP’s donors—released by court order—see here.
The frustrating thing from the voters’ point of view is whenever the truth comes out about this group that spent in Montana and other states, years will have past and impacted elections will be long over.
As I have written elsewhere, voters have right to know who is trying to influence their vote in real time. Dark money groups present the opportunity for all sorts of mischief including illegal coordination. So needless to say I’m only as shocked to see ATP in hot water as Captain Renault was in Casablanca to find gambling in Sam’s bar.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.