At least publicly, we’re no closer to knowing the identities of the two people who were responsible for The Cutler Files website, which savaged independent candidate Eliot Cutler in the weeks leading to November’s gubernatorial election.

But come Monday morning in Augusta, the Commission on Governmental Ethics and Election Practices will hold a meeting that may bring us closer to knowing whether those who created the website acted outside the law and, if so, whether they will be punished.

The commission will convene at 9 a.m. Monday at its offices at 45 Memorial Circle. The Cutler Files matter is at the top of the agenda, and the meeting is open to the public.

The question facing the ethics commission is whether the site, which is no longer active, violated Maine election laws.

The site was active from about Aug. 30 through the election on Nov. 2, in which Cutler finished second to Gov.-elect Paul LePage, a Republican. In September, the ethics commission authorized its staff to investigate a complaint by the Cutler campaign about the site, whose creators have not been revealed.

On Monday, ethics commission Executive Director Jonathan Wayne will deliver the results of that investigation.

He will tell commissioners:

The Cutler Files website did not violate Maine’s expenditure reporting requirement, because its creators did not spend more than $100. That’s the monetary trigger for requiring expenditure reporting.

The site met the standards for “express advocacy,” but it’s a murky area because of apparent conflicts between Maine and federal law. The state’s election law says the public should know who is speaking and whether that speech was authorized by another candidate. On the other hand, federal law protects anonymous speech.

“From the staff’s point of view, the Maine public had a strong informational interest in knowing in September and October 2010 who was financing The Cutler Files website, seeking to influence Maine voters in the gubernatorial race. The press and public were less able to engage with The Cutler Files authors and to access the reliability of their allegations because of the authors’ determination to remain anonymous,” Wayne wrote in his report.

He continued, “Nevertheless, the commission’s ability to regulate in the area of First Amendment activity is not as broad as some candidates, advocates and government actors (like myself) would like. The courts routinely caution administrative agencies regarding the application of statutes that impose burdens on core political speech.”

Wayne recommends that commissioners hear “the final advice from your counsel concerning the risks that a finding of violation could exceed constitutional limits” before deciding to take any action against the site’s creators.

In a letter filed with the commission last week, Richard A. Spencer, a Portland-based attorney for the Cutler campaign, urged the commission “to act on the results of its investigation of the Cutler Files website and carry out its statutory responsibility to take action on the clear violations of Maine campaigns laws. …”

The attorney representing the people responsible for The Cutler Files, Waterville-based lawyer Dan Billings, argues that the U.S. Constitution protects free speech and that The Cutler Files constituted a form of citizen journalism. Further, because the expenditures involved in launching and maintaining the website amounted to less than $100, no spending violations occurred. State law requires expenditure reports for more than $100.

“I hope the commission will agree that the allegations that there was some highly paid consultant who did opponent research on Mr. Cutler are not true,” Billings said. “The U.S. Supreme Court has recognized the right of anonymous political speech. The issue is the amount of money involved in the website, and the fact is, you have a very small amount of money involved. Ultimately, the commission’s jurisdiction has to be with campaign financing and not anonymous political speech.”

Spencer argues that the larger issue of anonymity versus free speech is more important to ensure the integrity of the election process.

In his letter to the ethics commission last week, Spencer suggested that if The Cutler Files research was done by a political rival and the site was aided by a paid consultant to a rival’s campaign, then those speakers are public figures and do not have any protected right to anonymity.

“On those facts, the commission should not hesitate to enforce the clear facial violations of Maine’s campaign laws,” Spencer wrote.

In an interview, Spencer said the commission’s decision is important for the sake of future elections in Maine.

“The important thing is to establish a principle that Maine laws that govern the disclosure of who’s saying what about who should be respected. That’s the important thing, going forward, for the integrity of the election process in this state. I think it’s just the principle that there is a law here and it carries out an important interest of the public in knowing who’s speaking. That’s the law. I think the commission should enforce the law.”

Staff Writer Bob Keyes can be contacted at 791-6457 or at:

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