The advisory opinion request reads almost like a sardonic joke — one about a candidate holding campaign finance laws up to a funhouse mirror to see what happens.
Minneapolis attorney David Asp, working on behalf of an anonymous political candidate, filed a request with the Minnesota Campaign Finance and Public Disclosure Board late last year. His question: Given that a SuperPAC cannot raise money in concert with a candidate, could a candidate instead raise money for the SuperPAC — and later have that money filter back into his campaign?
State law forbids independent groups such as SuperPACs from coordinating their independent expenditures with candidates. It is OK for a SuperPAC to raise money and spend it on behalf a candidate, but only if a candidate plays no coordinating role. The candidate essentially is not supposed to know about it.
What Asp’s client — later identified by the Associated Press as Republican gubernatorial hopeful Jeff Johnson — wanted to know was whether the reverse was also true. Could he attend a SuperPAC fundraiser, raise money for the SuperPAC, then have at least some of that money filter back to his campaign? The Disclosure Board’s advisory opinion, released in February, was a resounding no.
Rep. Ryan Winkler, who authored a campaign finance disclosure bill during the last session, says there is an easy way to answer questions like Asp’s.
“The safest thing would be to not engage in the activity that you’re asking about, just in case it is illegal,” Winkler says. “If the speed limit sign says between ‘55 and 60,’ you’re probably smart to go 55.”
But the issue is not so cut-and-dried. One token of its ambiguity is that the Campaign Finance and Public Disclosure Board’s own staff, led by Executive Director Gary Goldsmith, initially offered a draft advisory opinion that sided with Asp and his client. The board declined to consider that version and sent staff back to rewrite it.
Goldsmith explains that staff initially brought a narrow and literal reading of Minnesota Statutes Chapter 10, the applicable law.
“Without considering the purpose or intent of the statute at all,” Goldsmith says, “one could conclude that … a candidate can raise money for a committee that makes only independent expenditures.”
In February, Goldsmith returned with a new draft opinion that did consider legislative intent and reached the opposite conclusion. The board adapted that version unanimously.
The case attracted a fair amount of attention. President Barack Obama’s former top White House and campaign counsel, Bob Bauer, for instance, weighed in on his blog, www.moresoftmoneyhardlaw.com. He wrote that the board apparently had been swayed more by appearances of impropriety than a hard grasp of constitutional law.
Bauer scoffed at the advisory opinion’s declaration that the Minnesota Legislature, in writing the applicable statute, intended “the highest degree of separation” between candidates and independent committees.
“This may well have been the Legislature’s intention, but it carries only so much weight,” Bauer wrote. “More decisive are the constitutional limits on the execution of that intention. As a matter of constitutional analysis, the reference to the legislature’s intention belongs in the ‘neither here nor there’ category.”
What is an ‘expenditure?’
Asp agrees, if for slightly different reasons. “As I see it,” the attorney says, “the question in the advisory opinion is whether the act of raising money for a committee is, by itself, sufficient to constitute coordination with that committee’s expenditures. I think the board determined that the definition of ‘expenditure’ includes the act of raising money.”
One can very easily get lost in the snarl of legal arguments in support of and against the board’s February advisory opinion. Boiled down to its fundamentals, Asp’s argument is that the act of raising money is not the same as spending it, and coordination between a candidate and a committee cannot simply be assumed, even in the scenario for which he sought the board’s advice.
Goldsmith disagrees with Asp’s premise. “He is wrong when he tries to tie this decision to the definition of expenditure,” Goldsmith says. “Because the statute says that an independent expenditure is any expenditure that expressly advocates the nomination or election of a candidate.”
The fact that the legal phrase “independent expenditure” contains the word “expenditure” it is actually a cause for confusion, Goldsmith says. “An ‘independent expenditure’ isn’t just writing a check,” he says. “It is the process of developing and disseminating a communication.”
Despite their differences on this issue, Asp and Goldsmith agree on at least two key things.
First, Minnesota’s independent expenditure statute as currently written is vague and deserves to be revisited, especially in light of the U.S. Supreme Court’s Citizens United and McCutcheon decisions, which loosen restrictions on political fundraising. Goldsmith says Disclosure Board staff, which now is up to full strength, is likely at some point to conduct some formal rulemaking on the statute and present it to the board.
Asp and Goldsmith also agree that both of them serve an important function in making sure state’s campaign finance laws work.
“I’m trying to help my clients comply,” Asp says. “And I think Gary is, too.”
“Advisory opinions are only advisory, so there is some difficulty in determining what the boundaries are,” Goldsmith says. “And [Asp] is attempting to define those boundaries by asking for an advisory opinion.”
At 35, Asp is a partner at Minneapolis’ Lockridge Grindal Nauen law firm. His work there concentrates mainly on health care and employment law. Politics is a sideline, restricted largely to the summer and fall months.
But it is a sideline in which Asp has avid interest, and one to which he brings a distinctly conservative perspective. His political clients, in the main, are Republicans.
Asp, whose career began with the U.S. State Department in Washington, D.C., was GOP unit party chair in the former Senate District 42, now District 48, from 2005 to 2006. He once ran for office — against incumbent Amber Greves in the 2009 race for Minnetonka City Council, losing by a 64-36 percent spread.
Though unsuccessful, that experience has been useful in providing advice to the candidates who have knocked on his door looking for guidance
“I tell them this is really hard,” he says. “I mean, running for office is just a lot of hard work. It takes a lot of time, so it is a sacrifice for your family. It’s often a sacrifice for people’s jobs.”
Asp has represented several political clients who made headlines before his most recent campaign finance case.
One was former state Rep. Dan “Doc” Severson, who was sued by a voter during his 2010 campaign for Secretary of State. The voter took umbrage at Severson’s intention to use the name “Doc” on the election ballot, claiming Severson was trying to leverage the name of popular former Tonight Show bandleader Doc Severinsen. Severson countered that he had used the nickname during his 22-year career as a Navy pilot.
The Supreme Court ultimately ruled that Severson could not place the name on the ballot because “Doc” was not how Severson generally was known in his community.
“It was kind of an interesting issue,” Asp says. “The statute had not been interpreted before because it was a reaction to a case that existed before there was a statute. So it kind of sat there without judicial guidance.”
Asp also represented Rep. Mary Kiffmeyer, herself a former Secretary of State, in a case brought before the state Office of Administrative Hearings (OAH). That case, filed when Kiffmeyer was running for re-election in 2010, was a success.
In that instance, a constituent filed a complaint saying that a Kiffmeyer’s “legislative review” newsletter constituted illegal campaign material because it did not carry a disclaimer noting that her campaign committee paid for it. The OAH dismissed the case.
“The ruling was in effect, yes, there was no disclaimer on there,” Asp says. “But nobody who reads this can understand that it came from anyone but her. We all know where it is from — which is the purpose of the disclaimer statute.”
More recently, Asp represented attorney Harry Niska in a case about a false claim of political party support. Niska filed a complaint with the Office of Administrative Hearings after Republican attorney Bonn Clayton put out a mailing that claimed several judicial candidates in the 2012 elections were endorsed by the Republican Party of Minnesota. They were not.
Clayton also included in the mailing a false statement indicating that Justice Barry Anderson had voted against former Gov. Tim Pawlenty on an unallotment issue. That, too, was not true.
“The statute says that you can’t make a false claim implying party support when you don’t have it,” Asp says. “And you also can’t make false claims in campaign material that are knowingly false.”
The OAH ruled in Niska’s favor and fined Clayton $600. Clayton subsequently appealed to the State Court of Appeals, which affirmed the OAH’s ruling in part. That case is now being appealed to the state Supreme Court.
Health and employment law remains Asp’s meat-and-potatoes practice, and he is not considering a move to full-time work on campaign law. But neither is he ready to shove it aside.
“I do it because I think it is interesting,” he says. “I like the area of law. And I do it because I like the process. I think it is an important process for the parties to know how to run a campaign.”
The Asp File:
Name: David Asp
Grew up in: Moorhead
Lives in: Minnetonka
Job: Partner, Lockridge Grindal Nauen law firm, Minneapolis
Education: B.A., English and political science, Augsburg College; J.D., University of Minnesota
Family: Married nine years to wife, Jennifer; two kids
Hobbies/interests: Baseball fan; plays tennis and golf; was once a competitive tennis player at Augsburg College