Edward A.

“Ted” Hosp
334-233-7157 (cell)
thosp@maynardcooper.com

July 11, 2018

VIA E-MAIL
aagricola@rdafirm.com
Mr. Algert S. Agricola, Jr.
Ryals, Donaldson & Agricola, PC
60 Commerce Street, Suite 1400
Montgomery, AL 36104

RE: King v. Marshall, et al., CV-2018-394

Dear Al,

I write on behalf of the Steve Marshall for Attorney General Campaign (“the Marshall
Campaign”) to demand that you immediately voluntarily dismiss the above-referenced action as
required under the Alabama Litigation Accountability Act, Ala. Code § 12-19-270, et seq. For
multiple reasons, this action lacks any merit whatsoever and therefore should be dismissed.

In the first instance, the claims asserted in the Complaint lack any substantive merit
whatsoever. As you are well aware, the political action committee operated by RAGA, and from
which the Marshall Campaign received the contributions is subject to Federal law and Federal
reporting requirements, and is in full compliance with that law. As you also know, Alabama law
is – and has been for many years – that a Federal PAC making contributions to a state candidate
in Alabama is not required to register in Alabama and report its activity to the Secretary of State.

In fact, in recognition of this, during the 2004 revisions to the Fair Campaign Practices
Act (“FCPA”) the very minimal requirement that existed in the Code, which required Federal
PACs to file their federal forms with the Secretary of State, was deleted. This provision was
stripped from the Code in recognition of the Federal Election Commission State Filing Waiver
Program. Both you and Mr. King actually served on the Alabama Law Institute Committee that
recommended, among other things, removing that minimal requirement.

At that time (or at any time since then) the Legislature could have gone the other way and
actually required Federal PACs to both register and report as Alabama PACs when they make a
contribution to an Alabama candidate, thus subjecting them to Alabama’s laws on this issue.
But, unlike several other States, such as Georgia and Tennessee, Alabama has chosen not to do
so. Guidance published by the Alabama Secretary of State – the Chief Election Officer for the
State – provides as follows, as it has for many years:

Federal PACs are not subject to the Fair Campaign Practices Act.
Each federal PAC is required to comply with federal campaign
finance law by submitting any required reports to the Federal
Election Commission (FEC).
SOS PAC Filing Guidelines, available at https://sos.alabama.gov/sites/default/files/voter-
pdfs/glpac-2016%20(1).pdf. For all of these reasons, the ban contained in Ala. Code § 17-5-
15(b) simply does not apply to the PAC at issue here.1

Further, even if it were assumed that Alabama law applied here, which it clearly does not,
the receipt of a contribution by a candidate from a PAC that has taken money from another PAC
is not what is prohibited under the FCPA. Rather, the code section at issue here, Ala. Code § 17-
5-15(b) prohibits the transfer of funds from one PAC to another, but it only regulates the activity
of the PACs. Had the Legislature desired to prohibit the receipt of such contributions by a
candidate, it certainly could have done so – and in fact in other situations does precisely that.

For example, in Ala. Code § 17-5-15.1(a), the Legislature stated that

[a] principal campaign committee of a state or local candidate and

any person authorized to make an expenditure on its behalf may
not receive or spend, in a campaign for state or local office,
campaign funds in excess of one thousand dollars ($1,000) that
were raised by a principal campaign committee of a federal
candidate.

Id. (emphasis added). Unlike this section, though, the prohibition in § 17-5-5(b) (the PAC to
PAC ban) does not state that a candidate may not receive a contribution – despite the fact that it
could have if that was what the Legislature was seeking to prohibit.

Additionally, there is no private remedy provided for a violation of the FCPA, with the
possible exception of an election challenge – which here would be properly filed with the
Republican Party and not in Circuit Court. As you are aware, the FCPA contains numerous
provisions imposing penalties for violations. See Ala. Code §§ 17-5-19 and 19.1. The Act does
not, however, purport to authorize a private citizen to bring suit seeking to enforce it by means of
the extraordinary remedy of an injunction that restricts the First Amendment rights of a
candidate. Penalties for violation of the FCPA (if one even existed here) are criminal – or in the
nature of a civil fine. The remedy King seeks here is quite clearly not provided for under
Alabama law and therefore is not available.

As you also know, this action is barred by Ala. Code § 17-16-44, referred to sometimes
as the jurisdiction stripping statute. That section of the Code bars any court from hearing actions
regarding, among other things, the “conduct” of an election. The only exception to this rule is
where the authority of a Court to intervene is “specially and specifically enumerated and set
down by statute . . .” Id. That is not the case here, and as noted above, the specific remedies

1
Again, I believe you are fully aware of this fact at least in part through your role as legal counsel to the
campaign of Governor Robert Bentley in 2014. During that election cycle, the Bentley Campaign
received more than $250,000 from Federal PACs - none of which registered or filed in Alabama. This
included contributions from so-called Federal Leadership PACs such as HUCKPAC, which itself
received contributions from other PACs.
provided by the FCPA are criminal penalties or civil fines imposed by the Ethics Commission –
not injunctions issued by a Circuit Court.

Without question this action asks the Court to address the “conduct” of the election,
which it is prohibited from doing under the Code. This statute was cited as grounds for dismissal
in Rice v. Chapman, 51 So. 3d 281 (2010). As you know, because you served as counsel for
plaintiff in the matter, that case alleged a failure on the part of a candidate to comply with the
FCPA – specifically failure to timely appoint his principal campaign committee. Id. at 282. The
Court found that the proper course for the plaintiffs was to pursue an election challenge before
the Republican Party. Id. at 285. This action is nothing more than a back door pre-election
challenge that belongs – if anywhere - in front of the Republican Party.

Finally, the remedy of a temporary restraining order sought here by King is barred by the
equitable doctrines of both laches and unclean hands. The Marshall Campaign first reported
receipt of a contribution from RAGA on March 2, 2018, which was 131 days ago - more than
four months before the filing of this lawsuit. King actually held a press conference to note
contributions to Attorney General Marshall’s campaign from RAGA a full month before filing
this action. The run-off election is on July 17, less than one week from now. To the extent that
there is any time pressure here, that pressure is solely the result of King’s failure to take any
action prior to the absolute 11th hour. As a result, King is absolutely not-entitled to any equitable
remedies he alleges are now only “needed” because of his own inaction.

Because there is no substantial justification or basis for Mr. King’s claims against these
Defendants, pursuant to Ala. Code § 12-19-272, Plaintiff requests that King voluntarily dismiss
his Complaint, in advance of the hearing scheduled for tomorrow at 2:00 pm. Otherwise,
Defendants will seek expenses and attorneys’ fees for any and all efforts necessary to have the
matter dismissed.

Sincerely,

Edward A. “Ted” Hosp

Counsel for Steve Marshall for Attorney General