Board of Elections March 14-16 Transcript-16CD096

BOARD MEETING - EXECUTIVE SESSION 3/14/2016
Page 101
MS. GERVASE:
CHAIRMAN SCHOLZ:
Ms. Watson.
Bill, you have her
proxy.
MEMBER McGUFFAGE:
MS. GERVASE:
VICE CHAIRMAN GOWEN:
MS. GERVASE:
CHAIRMAN SCHOLZ:
Thank you, Mr. Secler.
10
Yes.
Vice Chairman Gowen.

Yes.
Chairman Scholz.
Yes.
Thank you,
Mr. Fultz.
11
MR. FULTZ:
12
MR. SECLER:
Thank you very much.
13
MR. MENZEL:
Mr. and Mrs. Kaye are
14
Thank you.
present down here on the next matter.
15
CHAIRMAN SCHOLZ:
All right.
16
everybody present in Chicago?
17
case here in Springfield.
18
versus Liberty Principles PAC.
19
20
We'll take up Kaye
Counsel.
MEMBER COFFRIN:
22
CHAIRMAN SCHOLZ:
24
I think that's the
We'll hear first from our General
21
23
Is
Mr. Chairman.
Yes, Betty.
Ms. Coffrin.
MEMBER COFFRIN:
www.midwestlitigation.com
I'm going to abstain
MIDWEST LITIGATION SERVICES

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 102
from voting on this one in particular because it
involves a legislative member -- or, candidate for
our legislative district.
4
5
CHAIRMAN SCHOLZ:
All right.
We'll
note the recusal of Member Coffrin.
So we'll hear from our General Counsel
and then we'll hear from the complainant and then
the respondent.
So, Mr. Menzel.
10
MR. MENZEL:
We have two items which
11
were consolidated.
They're agenda items 2a17 and
12
2a18.
13
Cabay versus Liberty Principles PAC.
It's Kaye versus Liberty Principles PAC and
14
The committee is an independent
15
expenditure committee which published some
16
materials that had the appearance of local
17
newspapers.
18
provide attribution of source and that the
19
candidate interviews in these mock newspapers
20
constituted improper collaboration between the
21
independent expenditure committee and the
22
candidates.
23
committee was the publisher but did not explicitly
24
state that it paid for the mock newspapers.
The complainants allege failure to
There was a paragraph stating that the

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 103
On this point the hearing officer
recommends that the complaint be filed -- found to
be filed on justifiable grounds but instead of
going to public hearing the committee be directed
to make a clear statement in any future materials
that it paid for the materials.
The committee asserts that the
candidate interviews and other content were
entirely outsourced to a third party and that there
10
11
is thus no coordination with any candidates.

On that point the hearing officer found
12
the claim that the committee had no control or
13
approval of what the third party produced as
14
straining credulity and recommended that the
15
complaint be found to be filed on justifiable
16
grounds and proceed to public hearing on the
17
coordination issue.
18
The hearing officer also noted an
19
additional issue that the parties did not address
20
in the closed hearing, that the Election Code
21
defines independent expenditures as relating to
22
expenditures for electioneering communications,
23
which are limited to broadcast items, or express
24
advocacy for or against candidates or referenda.

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 104
The mock newspapers are not broadcast items and
they do not expressly advocate for or against the
candidate.
the issue of whether the expenditures for the mock
newspapers are independent expenditures under the
Election Code, and if not, whether the committee
may permissibly pay for them.
8
9
The public hearing should also address
I concur with the hearing officer in

this matter.
10
CHAIRMAN SCHOLZ:
All right.
Questions
11
for our General Counsel before we hear from the
12
litigants?
13
14
If not, we'll hear from the complainant

first.
15
MS. KAYE:
16
CHAIRMAN SCHOLZ:
17
MR. MENZEL:
18
Can we let them go first?

We always --
There's two separate
complainants.
19
CHAIRMAN SCHOLZ:
Oh.
We'll hear from
20
the complainant first in Kaye versus Liberty
21
Principles.
22
MR. KAYE:
Okay.
23
MS. KAYE:
This circular was started --
24
That would be us.
received in our district February 12th.

Phone: 1.800.280.DEPO(3376)
It was
Fax: 314.644.1334
Page 105
delivered to the towns of Charleston, Mattoon,
Robinson, Marshall, Casey, Lawrenceville, Greenup,
Toledo, and Oblong.
Reporter.
issue numbers.
It's called the East Central
It has a week of 7 to 13, 2016.
No
This -- these towns are all in the
110th State Representative District.
None of the
towns listed are outside of the district.
the towns that are listed there were listed by
10
population rather than geographically or
11
alphabetically.
12
An article on the front page refers to
13
a candidate.
14
pursuing second term."
15
Goff, K-e-r-r-y G-o-f-f.
16
17
18
"Phillips details reasons for

It was written by Kerry
There's also an associated website as

well.
CHAIRMAN SCHOLZ:
19
ask -- I apologize.
20
for the court reporter.
21
22
23
24
All of
MS. KAYE:
C-l-a-i-r K-a-y-e.
I didn't
You have to identify yourself
My name is Clair Kaye,

I'm one of the complainants.
CHAIRMAN SCHOLZ:
interruption.
I'm sorry.
Okay.
Sorry for the
Go right ahead.
Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 106
MS. KAYE:
Sure.
Page 3, as was referred to by General
Counsel, has a from the publisher statement.
rather long, but I will still read it.
From the Publisher:
It's
Why East Central
Reporter?
Our representative republican form of
government relies on an informed citizenry to
function well.
to provide news about state and local policy
As such, our goal is twofold.
One,
10
matters and politics to help you assess whether the
11
policy decisions made by your elected officials are
12
aligned with your values and to explain how those
13
decisions impact your quality of life, and, two, to
14
offer quality local content to help you stay
15
abreast of what's happening in the community you
16
call home.
17
being made and frame the choices being offered in
18
order to foster a dialogue that produces the most
19
productive outcomes available.
20
contextual and consequential information to give
21
you the whole story.
22
where we speak with you rather than talking at you.
23
Consistent with that notion, we want to hear from
24
you and welcome your story ideas, your editorial
We will present the policy arguments
We will provide
This is a community forum

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 107
submissions, and your constructive critiques.
us which stories you find helpful, which stories
you enjoy, and conversely, which stories miss the
mark.
outlet to be of value to you.
that will only happen if we build trust, if we
listen, if we respect the broad spectrum of views
on a wide array of issues we cover and ultimately
if we provide quality content.
10
Tell
We want to be this outlet -- we want this

We know -- we know
Thank you.
And it's signed Liberty Principles PAC.
11
It has contact us information.
12
Central -- it has a news@eastcentralreporter.com.
13
It has a 708 phone number, 708-209-8012, and it has
14
a Twitter address.
15
16
17
CHAIRMAN SCHOLZ:
It says East
Again, sorry to
interrupt you.
But, Mr. Menzel, we have specific
18
language for attribution that's required, the "paid
19
for by" language?
20
MR. MENZEL:
It's not specific language
21
-- unlike something that solicits funds where
22
there's a very specific quote type language that
23
you have to put in, attribution of source, it
24
requires an indication of who paid for the

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 108
materials.
the publisher is, there really isn't any discussion
as to who paid for the materials.
4
5
6
While this is -- you know, it says who
CHAIRMAN SCHOLZ:
Okay.
I'm sorry,
Ms. Kaye, go ahead.

MS. KAYE:
So that was the first
complaint is who had paid for this.
And clearly,
when citizens get a mailer and it says "paid for
by", we're trained to understand this is a
10
political mailer.
11
and it is confusing, therefore, to readers who
12
might think this is something else other than a
13
paid political statement.
14
This is not saying "paid for by"
Liberty Principles PAC is an
15
independent expenditure committee.
16
with the Illinois State Board of Elections.
17
president and treasurer listed are one and the
18
same, Dan Proft.
19
It's registered
The
Liberty Principles PAC filed two B-1s
20
in support of Reggie Phillips.
21
support of Reggie Phillips, a payment was made to
22
Newsinator LLC for $14,166.67 and its purpose was
23
listed as advertising-newspaper, and a second
24
payment was made on March 7th, 2016, for 10,327,
On February 1st, in

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 109
again an advertising-newspaper in support of Reggie
Phillips.
Newsinator has two LLCs on file with
the State of Illinois, Secretary of State
registration for a limited liability corporation.
The first one was filed on March -- or, November
26th, 2014.
the agent name is Brian Timpone, T-i-m-p-o-n-e.
And the status of this file, which is File Number
The entity name is Newsinator LLC and
10
04956125, shows that its status is withdrawn, not a
11
current filing.
12
Secretary of State, also for Newsinator LLC -- this
13
withdrawal date was January 26th, 2015.
14
same day a filing date was made for Newsinator LLC
15
with a different file number with the Secretary of
16
State, File Number 05074797, and it lists the agent
17
name as Andrew J. McKenna, Jr..
18
that is the current agent of Newsinator.
LLC second filing with the
On the
So I take it to be
19
In a Cook County Chronicle article
20
dated February 17th, 2016, it was titled "New
21
weekly newspaper mailers part of GOP Super PAC
22
strategy in west Cook County."
23
Jean Lotus and it was for Chronicle Media.
24
It was written by
In it there's an interview with Dan

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 110
Proft and he explains some of the structure of the
way these different entities work together.
one, early in the paragraph -- early in the story
he's quoted as saying -- or, the story says "The
papers are produced in partnership with River
Forest media entrepreneur Brian Timpone, founder of
BlockShopper and the former Journatic, LLC - now
called LocalLabs, LLC."
In
Also in there was a direct quote from
10
Dan Proft that says "Every newspaper is an election
11
tool.
12
newspaper that doesn't report on certain candidates
13
and make endorsements.
14
it."
15
We're just transparent about it.
Show me a
We're just honest about
Also referred to in this article is an
16
area that says "Proft says he wants to present data
17
on a local level that demonstrates how decisions in
18
Springfield are affecting readers.
19
reporting teams from LocalLabs, Proft says he
20
suggests stories and discusses what reporters
21
should cover."
22
Working with
Finally, another quote says -- well, it
23
refers to a discussion that says "So far the six
24
new newspapers will not feature paid advertising,

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 111
Proft said.
It's more of a mission-focused
enterprise than a profit-driven enterprise."
Now, in this article it refers to
LocalLabs.
In fact, there is a -- LocalLabs is not
a registered corporation that's connected to Brian
Timpone.
Illinois Secretary of State for a business called
Locality Labs, L-o-c-a-l-i-t-y.
There's a separate filing with the
MS. SVENSON:
10
one minute?
11
Principles PAC.
12
May I interrupt for just
I'm the attorney for Liberty
I do not recall this evidence being
13
introduced at the closed preliminary hearing.
14
I'm wrong, please correct me, but I don't remember
15
the Lotus article being introduced.
16
wondering if this sort of evidence can be
17
introduced at this time.
18
19
20
21
CHAIRMAN SCHOLZ:
you in a moment.
And so I'm
Well, we'll hear from
Thank you.
MS. SVENSON:
Okay.
just throw that out there.
22
CHAIRMAN SCHOLZ:
23
MS. KAYE:
24
If
I just wanted to
Thank you.
Go ahead.
So Locality Labs,
L-o-c-a-l-i-t-y, Labs, LLC is registered with the

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 112
Secretary of State, File Number 02632055.
has a manager -- the LLC managers are two different
people, Brian Timpone, T-i-m-p-o-n-e, and Chris
Hochschild, H-o-c-h-s-c-h-i-l-d.
to old LLC names that were Journatic,
J-o-u-r-n-a-t-i-c, LLC, as well as BlockShopper
LLC.
that same news article as being the Brian Timpone
who is now running LocalLabs LLC.
10
And it
So it also refers
Both of these businesses were referred to in
On the front page of the East Central
11
Reporter there are six direct quotes from the
12
candidate, Reggie Phillips, candidate for State
13
Representative of 110th District.
14
one.
15
I'll read each
"'I have been in office a year and it
16
takes about six months to get water under your feet
17
and then another six months to get real work done,'
18
Phillips recently told East Central Reporter.
19
'You've got to have good relationships and you have
20
to build trust.'"
21
Second quote:
"'I still finance most
22
of my own campaign, and I work hard at everything I
23
do,' he said.
24
district or for my state, I am not going to vote
'If I don't think it is right for my

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 113
1
2
for it.'"
Third quote:
"'If you are going to
college to get an education and then graduate to
find you have no job options, then you have a
problem,' he said."
Fourth quote:
"'I ran for office in
the first place because I did not like the previous
representative -- who was 'triple dipping' -- and
it is not feasible to keep up such practices and it
10
is ..." it not "... it is not feasible to keep up
11
such practices and it not hurt the State of
12
Illinois,' Phillips said."
13
Fifth quote:
"'One of the things I
14
find so frustrating is that there are a few simple
15
changes we can make to really get our economy
16
going, but we continue to ignore these simple
17
reforms,' he said."
18
And the final quote:
"'Enacting real
19
workers' compensation reform, reducing excessive
20
business regulations and unleashing the full
21
potential of Illinois' natural resources would put
22
us back on course to economic growth and
23
prosperity.'"
24
There are six direct quotes from the

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 114
candidate in this article.
being attributed to -- not to Newsinator.
quote -- the first quote it says "Phillips recently
told East Central Reporter ..."
name that's on the top of here.
6
7
8
9
And the quotes are

In the
That's the same
To be an independent expenditure, you

both have to -- you have to -- I'll just read.
Independent expenditure means any
payment, gift, donation, or expenditure of funds
10
(i) by a natural person or political committee for
11
the purpose of making electioneering communications
12
or of expressly advocating for or against the
13
nomination for election, election, retention, or
14
defeat of a clearly identifiable public official or
15
candidate or for or against any question of public
16
policy to be submitted to the voters and (ii) that
17
is not made in connection, consultation, or concert
18
with the request -- with or -- with or at the
19
request or suggestion of the public official or
20
candidate, the public official's or candidate's
21
designated political committees or campaign, or the
22
agent or agents of the public official, candidate,
23
or political committee or campaign.
24
The fact that they interview the

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 115
candidate shows that there has been connection,
concert, and connection with the candidate in
producing this -- this document.
first issue.
So that is the
But the second issue is, as you brought
up, if it's not electioneering communication, if
they're not expressly advocating for or against
this candidate, then it's not allowed to be paid
for by an independent expenditure organization.
10
CHAIRMAN SCHOLZ:
Thank you.
11
Now, I understand the desire to deal
12
with these together, but I -- should we hear the
13
response to Ms. Kaye's complaint and then go to the
14
second one?
15
What do you think, Mr. Menzel?

MR. MENZEL:
It seems to me it might
16
almost be more efficient to hear the other
17
complainant.
18
CHAIRMAN SCHOLZ:
19
MR. MENZEL:
20
21
22
23
24
All right.
And to then give
Ms. Svenson a chance to -CHAIRMAN SCHOLZ:
All right.
Since
we're going to -MR. MENZEL:
They're essentially
identical pieces.

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 116
CHAIRMAN SCHOLZ:
So we'll hear from
the complainant in Cabay versus Liberty -- if I'm
pronouncing that correctly -- Liberty Principles
PAC.
the record and go ahead.
And then if you could identify yourself for
We have been asking previous parties to
try to limit to around ten minutes since we have
such a lengthy docket today.
But, you know, we
have some flexibility there.
So go ahead, the
10
complainant in Cabay.
11
MR. COEN:
Yes.
My name is Patrick
12
Coen.
13
present.
14
talking about, I would just refer to the complaint
15
and to the exhibits, the newspaper, in this case
16
the McHenry Times, and the newspaper article from
17
the Northwest Herald that had interviewed the
18
candidate in question in the 66th District as
19
showing that there was coordination between the PAC
20
and the candidate, Mr. Skillicorn, in this matter,
21
which we believe shows that there is a violation of
22
the statute concerning the use of expenditures from
23
an independent political action committee.
24
I'm the attorney for Mr. Cabay.
He's
But because of the time frame that you're
We would concur with the first

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 117
complainant as far as the newspaper in question has
exactly the same type of language regarding
publication, and, furthermore, the exhibit that we
presented concerning the interview by a Northwest
Herald reporter to the candidate where the
candidate admitted that they had spoken directly to
the provider of the newspaper information, and that
in addition they had sent out press releases, which
shows the coordination and cooperation that is
10
prohibited from being undertaken by an independent
11
PAC.
12
The last item is one of there seems to
13
be an attempt to show that the independent PAC had
14
a second party, this Newsinator, that excused them
15
from complying with the statute.
16
merely point out that under the general principles
17
of agency law, a principal is going to be liable
18
for the actions of their agent unless that
19
principal can specifically show that that agent was
20
operating outside of the authority given by the
21
principal.
22
And I would
Secondly, the language that had been
23
quoted concerning electioneering clearly used the
24
word "agents" and therefore clearly shows that the

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 118
statute anticipated someone claiming that an agent
was the one who conducted the affairs and that the
principal therefore is not responsible for the
agent's conduct.
already been provided in the statute.
believe that the statute has clearly been violated.
And again, clearly, that's

So we
We also believe that the technical
argument that the communications were not
electioneering and therefore are also prohibited by
10
the independent PAC requirements has been met.
11
And we simply point out the fact that
12
if this matter is allowed to stand as is, the
13
differentiation that the legislature created to
14
differentiate between an independent PAC and other
15
forms of political action committee will be lost
16
and, therefore, the statute will be meaningless.
17
Thank you.
18
CHAIRMAN SCHOLZ:
19
20
Okay.
Thank you,
Mr. Coen.
So we have the same respondent for both
21
complaints and the same -- in essence, the same
22
issues, attribution and collaboration.
23
24
All right.
respondent then.
So we'll hear from the
Could you identify yourself,

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 119
please?
MS. SVENSON:
Yes.
My name is
Christine Svenson, S- as in Sam -v- as in Victor
-e-n-s-o-n.
Principles PAC.
I am the attorney for Liberty
So the matter that we're here on today
is -- the complaint is baseless and everything
brought by the two complainants is based upon
speculation and conjecture with no proof whatsoever
10
of coordination.
11
is their burden to prove that there is
12
coordination.
13
And I will remind you all that it
And they don't have any.
Now, my PAC, Liberty Principles PAC,
14
goes out and hires vendors to create their
15
materials.
16
PAC is, they are producing electioneering
17
communications.
18
and put these electioneering communications
19
together.
20
the community at large, and as indeed they have to,
21
in order to produce these materials, whether
22
they're videos, whether they're newspapers,
23
whatever they are.
24
allowed to do that, they wouldn't be able to
They are in the business, meaning my
So these vendors have to go out
They are allowed to go to the Internet,
So if the vendors were not

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 120
produce these materials.
The mere interview of a candidate or a
potential candidate, Mr. Phillips or
Mr. Skillicorn, does not mean coordination.
Mr. Skillicorn -- there was no evidence that
Mr. Skillicorn or Mr. Phillips coordinated the
production of this ad with Mr. Proft.
provided their policy positions to a vendor -- a
vendor's actual employee, the reporter who was
10
They simply
writing these articles.
11
There's no evidence that Mr. Skillicorn
12
or Mr. Phillips got on the phone with Mr. Proft,
13
who is the chairman of Liberty Principles PAC, and
14
said, okay, let's put together this ad and, you
15
know, skew this in favor of me and this is how I
16
want you to do this.
17
and that's not what we have here.
18
That's what coordination is
In addition -- and I wasn't allowed,
19
wrongly, to go into this at the preliminary
20
hearing.
21
perhaps it was Ms. Kaye -- one of them testified
22
about their knowledge of the subject matter and
23
Mr. Phillips' involvement.
24
I was -- I tried to inquire of Mr. Kaye about
Mr. Kaye was able to testify -- or
I then tried to -- or,

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 121
whether or not he was approached for an interview
with this very same news reporter, the East --
whatever it's called, the East St. Louis reporter.
I don't recall the exact name of it.
refused to answer.
fact asked to comment for the purposes of this
article.
And Mr. Kaye
And that's because he was in
So our reporters are allowed to go out
into the community and gather information for the
10
purposes of generating their materials.
11
not coordination and that is not what this statute
12
contemplated.
13
That is
Now, relative to the argument that we
14
are -- that these are not independent expenditures,
15
it's hard to imagine how one can have their cake or
16
eat it too.
17
it means any payment, gift, donation, or
18
expenditure of funds by a natural person or
19
political committee for the purpose of making
20
electioneering communications.
21
But an independent expenditure is --
So now we go to electioneering
22
communication defined.
23
communication means any form of communication in
24
whatever media, but not limited to radio,
Electioneering

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 122
television, or Internet communication, that refers
to a clearly identified candidate and is made
within 60 days.
Election -- then (b), this is what the
hearing examiner did not go to, Section
9-1.14(b)(1).
advertisement, appearing in a news story,
commentary, or editorial distributed through the
facilities of any legitimate news organization --
10
and then here's the operative words -- unless the
11
facilities are owned or controlled by any political
12
party, political committee, or candidate.
13
A communication, other than an
Well, that's what this is.
This is a
14
political committee doing the communication.
15
that means that it is by definition an
16
electioneering communication.
17
our IE -- our independent expenditure committee is
18
properly doing independent expenditures.
19
not making contributions directly to campaigns.
20
Thank you.
21
CHAIRMAN SCHOLZ:
So we properly --
We are
So the -- it's pretty
22
clear then that this sort of tabloid campaign
23
piece, either one of them, they were an
24
electioneering communication?
So

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 123
MS. SVENSON:
It is in our mind.
CHAIRMAN SCHOLZ:
And so what would
that -- that would require attribution then;
wouldn't it?
MS. SVENSON:
Oh, you're referring to
the fact that there was no paid for by Liberty
Principles language?
CHAIRMAN SCHOLZ:
MS. SVENSON:
Right.
Yeah.
No.
I already
10
conceded in the closed prelim that that was a
11
mistake.
12
Liberty Principles PAC because of the fact that
13
there was a note saying publisher Liberty
14
Principles.
15
mistake.
16
officer's recommendation with respect to that
17
aspect of this --
One could infer that it was paid for by
But that was -- but that was a
And we are willing to accept the hearing
18
CHAIRMAN SCHOLZ:
19
MS. SVENSON:
20
CHAIRMAN SCHOLZ:
21
Do you wish to respond briefly,
22
Okay.
-- this complaint.
Thank you.
Ms. Kaye?
23
MS. KAYE:
24
So in the area under electioneering
I do.

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 124
communications, electioneering communications
means, for the purpose of this article -- and I'm
reading from 5/9-1.14.
communications means, for the purposes of this
article, any broadcast, cable, or satellite
communication, including radio, television, or
Internet communication.
newspaper in that section.
Electioneering
MS. SVENSON:
10
MS. KAYE:
11
MS. SVENSON:
12
It does not include a
May I respond?
No.
It says including but not
limited to.
13
MR. MENZEL:
That's the prior language.
14
MS. SVENSON:
15
MR. MENZEL:
16
MS. SVENSON:
Oh, okay.
Prior to 2011.
To me, it's not clear
17
either way.
18
does not disinclude a newspaper.
19
And it specifically does not -- it
MS. KAYE:
I'm reading from today's
20
language.
Today's language says electioneering
21
communication means, for the purposes of this
22
article, any broadcast, cable, or satellite
23
communication, including radio, television, or
24
Internet communication -- it does not include

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 125
newspaper -- that (1) refers to --
MS. SVENSON:
MS. KAYE:
-- refers to (i), a clearly identified
But it doesn't --
Excuse me.
candidate or candidates who appear -- we agree
they're there -- and a clearly identified --
clearly identified political party, or a clearly
identified question that will -- of public policy
that will appear on the ballot, (2) is made within
10
(i) 60 days before a general election or
11
consolidated election or (ii) 30 days before a
12
primary election, (3) is targeted to the relevant
13
electorate, and (4) is susceptible to no reasonable
14
interpretation other than as an appeal to vote for
15
or against a clearly identified candidate for
16
nomination for election, election, or retention, a
17
political party, or a question of public policy.
18
If the -- if the interview with this
19
candidate is not a clearly understood target to
20
appeal for a vote, can it be electioneering
21
communication?
22
story which does not have a vote for message.
23
24
It appears to be an impartial news
Also, in the part about election

communications does not include there was an

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 126
exception to allow newspapers to not be part of
electioneering.
the end of that saying that -- there's two nots in
there.
And, yes, there is an exception at
You can't have it both ways.
I'll rest.
CHAIRMAN SCHOLZ:
All right.
Ms. Svenson, do you want to respond to that?
8
9
I'll let the other guys --
MS. SVENSON:
Yes.
So this statute
does not rule out the fact that a newspaper can be
10
considered an electioneering communication.
11
again, this -- this newspaper that we've produced
12
does refer to a clearly identified candidate who
13
will appear on the ballot.
14
produced by an entity that is a political
15
committee.
16
was clearly an electioneering communication.
17
And
And it also was
So again, it's our position that this
MS. KAYE:
So at this point -- one last
18
time.
It's susceptible to no reasonable
19
interpretation other than an appeal to vote.
20
people get a pretend newspaper and read a pretend
21
article, is it their -- there's no reasonable
22
interpretation except that that's an appeal to vote
23
for that candidate?
24
written by the same group against the opposing
When
Because when the article is

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 127
candidate, is there also an appeal not to vote for
that person?
MS. SVENSON:
CHAIRMAN SCHOLZ:
Well --
Ms. Svenson, briefly.
MS. SVENSON:
CHAIRMAN SCHOLZ:
Go ahead,
No, I have no response.

All right.
Are there
questions from the Board?
Mr. Cadigan.
10
MEMBER CADIGAN:
The General Counsel's
11
report notes that the issue of the electioneering
12
communications was not briefed or raised by the
13
parties.
Is that right?
14
MR. MENZEL:
That's correct.
15
MEMBER CADIGAN:
During the -- okay.
16
think that's significant for points that I'll state
17
later.
18
19
Mr. McGuffage I believe has something

he wanted to say.
20
MEMBER McGUFFAGE:
Well, yeah, I agree.
21
If it wasn't raised, it's waived.
22
you know, make a complaint about electioneering
23
communication, you know, do it in a separate
24
complaint.
If they want to,

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 128
1
2
CHAIRMAN SCHOLZ:
Go ahead, Mr.
Cadigan.
MEMBER CADIGAN:
Well, I want to thank
the complainants and their counsel for arguing
these issues in a very important way.
hearing officer's report says, these are complex
matters.
process up to this point has made them any easier
to figure out.
10
And as the
And I frankly don't think that the
These changes to the Election Code, as
11
our General Counsel pointed out, were enacted in
12
2011.
13
a campaign finance task force.
14
finance task force -- there's actually language in
15
the code that sets forth the mandate for that task
16
force, directing them to prepare any number of
17
kinds of reports to advise the General Assembly and
18
the regulated community on how to deal with a whole
19
host of issues.
20
administrative support for that task force.
21
only report that that task force completed was one
22
on public financing.
23
24
That change to the Election Code also formed

The campaign
This agency provided the

The
In talking to staff before the meeting

today, I just inquired, what was the nature of the

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 129
remainder of that task force's work?
response was essentially it went unfinished, that
there was -- interest in that waned and it was
never completed.
And the
I believe that if more diligence had
been shown, they would have taken these issues up,
these complex issues of coordination and
independent expenditures.
that leaves us here in this situation today.
10
11
12
But they did not.
So
Where I believe we can also look for

guidance or where -- let me restate that.
If this were a federal election matter
13
and not a state matter, the parties would have a
14
well-developed body of regulations to turn to to
15
guide the analysis.
16
Counsel for Mr. Cabay made I believe an
17
accurate statement of agency law.
18
campaign finance disclosure law sometimes the laws
19
don't mean what they say in other areas.
20
particularly this FEC rule as it relates to
21
independent expenditures and coordinated campaigns,
22
there is a very dense analysis that the parties go
23
through to determine whether or not a -- there's
24
been coordination.
Except that in

Phone: 1.800.280.DEPO(3376)
And
Fax: 314.644.1334
Page 130
So I guess this is a long way of saying
that I think that if the respondent admits there
should have been a disclaimer on there, that the
rest of these issues I don't believe we have clear
guidance enough to determine whether coordination
or electioneering communication has occurred, and
we're essentially being asked -- because they
weren't argued in the context of the hearing, we're
being asked to make policy.
10
And I believe that the better way to do
11
that isn't within -- trying to develop facts on the
12
fly here, is to hold the rules -- you know, we have
13
a process for developing rules.
14
at what the FEC has done on this, what courts have
15
approved, and start down that path.
16
And we should look
That way, organizations like the
17
Illinois Press Association -- and I notice there's
18
material in the -- an e-mail from the Illinois
19
Press Association relating to this.
20
whether or not the publication is a member or not.
21
But I would think that an organization as well
22
respected and as long-standing as the Illinois
23
Press Association would want to opine about whether
24
or not papers -- where do they -- newspapers, where
It doesn't say

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 131
do they fall on this and what is or isn't a
newspaper.
But again, all those issues I believe
are better suited to the rulemaking process and not
the facts as we have them before us today.
that's what I would urge the fellow members of the
Board to give some thought to and to consider as we
proceed to vote on these matters.
9
10
CHAIRMAN SCHOLZ:
So
Thank you,
Mr. Cadigan.
11
Other members of the Board have either
12
questions for the respective counsel or comments?
13
Could certainly use a --
14
MR. COEN:
15
CHAIRMAN SCHOLZ:
16
Can I make a summary?

Yeah, go right ahead,
Mr. Coen.
17
MR. COEN:
Thank you.
18
As counsel for Mr. Cabay, generally, I
19
understand the comments about the issue that was
20
raised by the hearing officer being new, but our
21
complaint clearly indicated through the evidence
22
that was presented in the exhibit from the
23
Northwest Herald that there was communication by
24
the candidate to this entity concerning press

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 132
releases and interviews that show the common
definition of connection, consultation, or concert
that is specifically mentioned in 5/9-8.6 as being
not allowed by an independent expenditure.
Therefore, we believe that we have produced the
evidence that shows that there was conduct by the
candidate with this entity that show that there was
the necessary connection, consultation, or concert
that is prohibited by an independent political
10
action committee.
11
And then the last item, I believe we've
12
beat this horse, but if you look at the section (b)
13
that counsel for the political action committee
14
raised, in essence, it says electioneering
15
communication does not include any legitimate news
16
organization, unless the facilities are owned or
17
controlled by any political party, political
18
committee, or candidate.
19
It's clear that the communication was
20
from a political committee and therefore it does
21
not get excluded.
22
negative.
23
not, under the statute, allowed by an independent
24
political action committee.
In essence, it's a double
It is included.
And therefore, it is

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 133
Thank you.
CHAIRMAN SCHOLZ:
Ms. Kaye?
Ms. Svenson?
MS. SVENSON:
Thank you, Mr. Coen.
Yeah, if I may.
I didn't
really understand counsel's last point, but I will
say this:
around talking to reporters does not constitute
coordination.
Mr. Skillicorn or Mr. Phillips going
That -- and now we're -- now you're
10
looking at the free speech rights of these
11
candidates.
12
talk to people in their community or vendors and
13
share information?
14
slope that you are going down if you are going to
15
consider this to be coordination.
Are they not supposed to go around and
I mean, that's the slippery
16
Thank you.
17
MS. KAYE:
18
CHAIRMAN SCHOLZ:
19
MS. KAYE:
I have one last thing.

Yes.
Then why not attribute it to
20
Newsinator instead of East Central Reporter?
21
intent is to make it look like East Central
22
Reporter was the reporter.
23
CHAIRMAN SCHOLZ:
24
All right.
The
Thank you.
Members of the Board, we'll

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 134
take up the recommendation of the hearing officer
and General Counsel.
Is there a motion?
Mr. McGuffage.
MEMBER McGUFFAGE:
You know, everything
we've heard today, I mean, we're going to hear
again in a public hearing.
I think Bill Cadigan is absolutely
right.
We need some -- we need a rule on this.
we look at the reports, opinions from hearings at
If
10
the Federal Election Commission, we can formulate a
11
rule.
12
determinations here.
13
public hearing at this point is going to do any
14
good other than, you know, rehashing everything
15
we've heard today.
16
sense.
It makes no sense when we can't make

I don't see where going to a
I mean, it doesn't make any
We need a rule.
17
So I move that we find that the
18
complaint was filed on justifiable grounds but do
19
not proceed to a public hearing at this time.
20
CHAIRMAN SCHOLZ:
21
MEMBER CADIGAN:
22
I'll second that
motion.
23
24
All right.
CHAIRMAN SCHOLZ:
Motion made and
seconded.

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 135
Go ahead.
MEMBER CADIGAN:
Well, if it's
appropriate -- and maybe for a separate motion --
to direct the staff to start the process of
drafting rules and look at the FEC regulations as a
point to start.
And I think that the parties here, if
they're inclined -- they've made some wonderful
points in a closed hearing, that if they're
10
inclined to do it, want to revisit the issue, be
11
the first to appear and testify at a rulemaking
12
hearing to reiterate the points that they've made.
13
CHAIRMAN SCHOLZ:
14
If I understand
15
it correctly, we are down to the issue of
16
coordination, correct, as just the sole issue?
17
18
19
20
CHAIRMAN SCHOLZ:
I think the
attribution was conceded by Ms. Svenson.

That's my point.
Is that correct, Ms. Svenson?
21
MS. SVENSON:
Yes.
22
Okay.
23
the one issue.
24
disregard the attribution of source.
So we have
And the other I -- hopefully we can

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 136
MS. SVENSON:
CHAIRMAN SCHOLZ:
motion.
Right.
Okay.
And I agree with the
I think the --
CHAIRMAN SCHOLZ:
Me too.
I think that it was
filed on justifiable grounds in terms of the
communication that was documented would amount to
collaboration.
I also agree with Bill that I don't
10
think the public hearing is -- it's probably, as
11
Mr. Cadigan said, more productive to go to some
12
sort of rulemaking process.
13
14
Anybody else wish to be heard on the

motion?
15
16
If not, Darlene, could you call the

roll, please?
17
MR. MENZEL:
18
CHAIRMAN SCHOLZ:
19
Yeah, it was seconded
by Member Cadigan.
20
21
Did we get a second?
MR. MENZEL:
it.
I'm sorry.
I did not hear
Thank you.
22
MS. GERVASE:
23
MEMBER CADIGAN:
24
MS. GERVASE:
Mr. Cadigan.
Yes.
Mr. Carruthers.

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334
Page 137
MEMBER CARRUTHERS:
Yes.
MS. GERVASE:
CHAIRMAN SCHOLZ:
MS. GERVASE:
MEMBER McGUFFAGE:
MS. GERVASE:
MEMBER McGUFFAGE:
MS. GERVASE:
Mr. Keith.
Yes.
Mr. McGuffage.
Yes.
Ms. Watson.
Yes.

Yes.
10
MS. GERVASE:
11
CHAIRMAN SCHOLZ:
12
Ms. Coffrin recuses herself, so we
13
Chairman Scholz.
Yes.
should show that on the record.
14
All right.
The recommendation will be
15
adopted, other than no public hearing on the second
16
finding, on the finding as to collaboration.
17
But it was very well briefed and
18
argued.
19
Ms. Kaye.
20
this.
21
22
So thank you, Mr. Coen, Ms. Svenson,

We appreciate your vigilance on all
Do we need another break?
Has it been
about an hour?
23
MR. MENZEL:
24
object to a very brief one but --
I certainly wouldn't

Phone: 1.800.280.DEPO(3376)
Fax: 314.644.1334

Board of Elections March 14-16 Transcript-16CD096

Caricato da

Informazioni sul documento

Descrizione originale:

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Board of Elections March 14-16 Transcript-16CD096

Caricato da

Copyright:

Formati disponibili

BOARD MEETING - EXECUTIVE SESSION 3/14/2016

VICE CHAIRMAN GOWEN:

Thank you, Mr. Secler.

Vice Chairman Gowen.

Thank you very much.

Mr. and Mrs. Kaye are

present down here on the next matter.

everybody present in Chicago?

case here in Springfield.

versus Liberty Principles PAC.

We'll take up Kaye

I think that's the

We'll hear first from our General

I'm going to abstain

MIDWEST LITIGATION SERVICES

BOARD MEETING - EXECUTIVE SESSION 3/14/2016

from voting on this one in particular because it

involves a legislative member -- or, candidate for

our legislative district.

note the recusal of Member Coffrin.

So we'll hear from our General Counsel

and then we'll hear from the complainant and then

So, Mr. Menzel.

We have two items which

They're agenda items 2a17 and

Cabay versus Liberty Principles PAC.

It's Kaye versus Liberty Principles PAC and

The committee is an independent

expenditure committee which published some

materials that had the appearance of local

provide attribution of source and that the

candidate interviews in these mock newspapers

constituted improper collaboration between the

independent expenditure committee and the

committee was the publisher but did not explicitly

state that it paid for the mock newspapers.

The complainants allege failure to

There was a paragraph stating that the

MIDWEST LITIGATION SERVICES

BOARD MEETING - EXECUTIVE SESSION 3/14/2016

On this point the hearing officer

recommends that the complaint be filed -- found to

be filed on justifiable grounds but instead of

going to public hearing the committee be directed

to make a clear statement in any future materials

that it paid for the materials.

The committee asserts that the

candidate interviews and other content were

entirely outsourced to a third party and that there

is thus no coordination with any candidates.

the claim that the committee had no control or

approval of what the third party produced as

straining credulity and recommended that the

complaint be found to be filed on justifiable

grounds and proceed to public hearing on the

The hearing officer also noted an

additional issue that the parties did not address

in the closed hearing, that the Election Code

defines independent expenditures as relating to

expenditures for electioneering communications,

which are limited to broadcast items, or express

advocacy for or against candidates or referenda.