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 scover@mainetoday.com
State House Bureau

AUGUSTA - Despite the online confession of one of the authors Thursday, state ethics officials are still refusing to identify the people behind The Cutler Files.

click image to enlarge

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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The website that launched in August criticized independent gubernatorial candidate Eliot Cutler. Until last week, its authors remained anonymous, despite a ruling Monday that one of the authors was in violation of state ethics rules for failing to identify himself.

State officials say they won't identify the authors until Jan. 27, the state ethics commission's next meeting, even though political consultant Dennis Bailey wrote Thursday that he is one of two people behind the site, and that he is the one found in violation of ethics rules. The delay, the state said, is to allow the authors to decide whether they will appeal the ruling.

"We're preparing a written determination to present to the commission," said Jonathan Wayne, executive director of the Maine Commission on Governmental Ethics and Election Practices, on Friday. "A fuller explanation of the facts will be available at that time."

Wayne declined to comment on Bailey's admission. His name had surfaced early on in the commission's investigation -- he disclosed his affiliation on his blog, savvyspin.com.

In September, Cutler, of Cape Elizabeth, filed a complaint with the state ethics commission because the website did not disclose who paid for it or whether it was authorized by another candidate.

The commission voted 5-0 on Dec. 20 to find one of two authors behind the site violated state law. That author, called John Doe II by the commission, was fined $200. (The other party, who did not violate state law, is John Doe I.)

Ethics officials have been careful not to reveal who is responsible for paying the fine, however, over concerns about protecting his or her First Amendment rights.

Wayne said keeping the identities secret is "unprecedented," but was necessary because of possible constitutional challenges.

"This is the only time we've conducted an investigation this way," he said.

The Portland Press Herald reported in October that Bailey and Thom Rhoads, the husband of former Democratic gubernatorial candidate Rosa Scarcelli, were the authors of the website. The Sun Journal of Lewiston also named Rhoads as a co-author in an article Friday.

The attorney for the Cutler campaign had accused a political consultant and a family member of a political candidate of authoring the site during an ethics hearing last week.

When asked Friday whether Bailey and Rhoads were the consultant and family member, Cutler campaign manager Ted O'Meara said he has no reason to believe their reported involvement is inaccurate.

Rhoads, when contacted by the Press Herald in October, vehemently denied the allegation.

O'Meara said Bailey's admission vindicated Cutler and his campaign team, who felt the website's authors needed to be identified in the spirit and principle of Maine law regulating campaign finance disclosures.

The site, said O'Meara, was nothing more than politically charged character assassination; he and Cutler's attorneys cited allegations that the material contained on the website was peddled to other political campaigns for a price -- reportedly $30,000 -- as evidence of its political nature.

The Cutler campaign caught wind of the authors' attempt to sell the information through other campaigns who were approached, said O'Meara.

Bailey, contacted Friday, said he was not involved with the attempt to sell the information, and declined to name his co-author.

In his detailed blog post, he described The Cutler Files as an attempt to "tell the truth about a candidate for governor who we believed was fudging his record," and blamed the media for not covering the story.

"The authors of the website were vilified, the candidate played the victim and freedom of speech took a major hit from which it may not recover," Bailey wrote, further describing the work as an example of online journalism.

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.

TRYING TO TOE THE LINE

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.

A KIND OF 'EXPERIMENT'

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.

"Every article we posted contained numerous links to the source material," he wrote. "There were no wild, unsubstantiated accusations typical of smear tactics. Instead, everything was documented."

He also distanced the site from Shawn Moody, the former independent candidate for governor from Gorham whose campaign Bailey managed at the time the site was launched. In October, Bailey was working for Moody when he denied to the Press Herald that he was involved with The Cutler Files.

"I regret that I couldn't be completely open, but I did it solely to protect (Moody) from any negative fallout," wrote Bailey on his blog. "I'd take a bullet for the guy, and in some ways I feel like I did."

Bailey also blamed Cutler for drawing attention to the site by bringing the ethics case.

Cutler's attorney, Richard Spencer, argued to the commission that the public had a right to know who was behind the serious charges leveled on the site. And since that didn't happen, it's important to set a precedent for how these types of websites will be handled in the future.

The site, which called Cutler "a phony and a fraud," criticized his career as an attorney, his work for the federal government and his personal appearance. It also contained satire, such as offering a ransom for a photo of Cutler in a "barn coat," and alleging that a college-age Cutler had appeared in a photo with movie star Natalie Wood.

Bailey, on Friday, acknowledged some parts of the site detracted from what he says the authors wanted to draw attention to -- Cutler's time on the board of failed mortgage company Thornburg, his career in China and controversies when he was a U.S. budget official.

"I have some regrets about how it turned out," Bailey said. "We would have done some things differently, if we had thought it through."

THE PUBLIC'S RIGHT TO KNOW

Sigmund Schutz, an attorney who has represented Maine newspapers in Freedom of Access cases, said the state should have revealed the name of The Cutler Files author found in violation of ethics rules.

He cited a recent U.S. Supreme Court case in which those who signed a petition in Washington state were found not to have a right to keep their names anonymous. When it comes to The Cutler Files, Schutz said, the public has a right to know who has been found in violation by a state agency.

"Here you have a state agency taking enforcement action and preventing the public from knowing who has been penalized," he said. He said the burden to keep the names secret should fall on the creators of the website, not the state.

Billings said there is no right for the public to know the identities of those who choose to engage in anonymous political speech. It's up to voters to decide whether to believe what they read on a site like The Cutler Files, he said.

"I trust the voters," he said. "I think it's a legitimate piece of information that voters can consider when judging the credibility of a political message."

MaineToday Media State House Writer Susan Cover can be contacted at 620-7015 or at:

scover@mainetoday.com

 

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