December 26, 2010

Cutler Files presented right-to-know dilemma

Ethics regulators had wanted to give the website's creators time to appeal a ruling before their identities became public.

By Susan M. Cover
State House Bureau

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Political consultant Dennis Bailey, above, says he is one of two people behind The Cutler Files, a website that criticized independent gubernatorial candidate Eliot Cutler, below.

Press Herald file photos

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O'Meara said the site went well beyond citizen journalism.

"It clearly had (Bailey's) fingerprints all over it. Any reasonable person who read that site realized it was written by somebody with an ax to grind," he said.


The Kennebec Journal and Morning Sentinel on Dec. 21 filed a Freedom of Access Act request that, among other things, asks the state to release the "identity and contact information for the authors of The Cutler Files."

Wayne said while he understands the public interest in knowing the site's authors, the ethics panel is trying to toe the line between enforcing state law and not violating the First Amendment right to anonymous political speech.

State law requires anyone who expressly advocates for or against a political candidate to include "a statement of the name and address of the person who made or financed the expenditure."

But The Cutler Files' attorney, Dan Billings, said state law goes well beyond how federal courts have interpreted the First Amendment.

With no financial threshold in the state law, someone who spends $1 on a "handmade sign or handmade website" is required by the state to disclose their identity, Billings said.

"On its face, it's ridiculous," he said. "There needs to be a financial threshold."

One key point to the investigation was how much money was spent to research and post the site. Despite allegations by Cutler's legal team that it must have cost hundreds, if not thousands of dollars, Wayne concluded the total cost to produce the site -- including research -- was $91.38.

Because it fell under $100, it did not trigger the requirement to file an independent expenditure report.

That left the ethics commission with one pending allegation: that the site violated state law by failing to disclose who was behind it. Commissioners voted last week that John Doe II failed to meet that requirement.

"The commission wants to enforce the laws and that's what they've done in this case," Wayne said. "They are recognizing we're operating in an area of First Amendment activity so they are taking one month to allow him to challenge the decision before they identify who he is. We're trying to be reasonable."

Billings said he and his clients could have taken the matter directly to federal court, even before an investigation was launched.

That's the kind of pre-emptive move employed by the National Organization for Marriage, which has challenged the Maine ethics commission's authority to investigate it for possible campaign finance violations.

But Billings said his clients preferred to cooperate with the investigation -- with the understanding their names would be kept secret, at least until there was a finding of violation.

There has been no promise of permanent anonymity, he said.

"It saved everyone a lot of time and money," he said. "It encourages people in the future to work cooperatively with the ethics commission even if they are investigating something you don't think is in its jurisdiction."

Billings, who is not being paid to represent his clients, said they have not yet decided whether to file an appeal. Bailey restated that in his blog post.


Bailey, in his posting, said The Cutler Files was built using common software and based upon a thick sheaf of research done by his partner, John Doe I, whom he describes as an energized political outsider bothered by his perception that Cutler played fast and loose with the truth about his past.

On Friday, Bailey said the site was posted as a kind of "experiment" and that he and his co-author were astonished at the reception it received. In his post, Bailey said the authors believed it to be nothing more than an expression of free speech and expression of ideas.

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