A lawyer on Tuesday asked a judge to dismiss a complaint accusing former Utah Attorney General John Swallow of federal election fraud, contending the rule he allegedly broke violates the right to free speech.
That regulation “chills” fundamental election activity, according to attorney Allen Dickerson, of the Institute for Free Speech, a Virginia-based nonprofit that formerly was called the Center for Competitive Politics.
But Sana Chaudhry, an attorney for the Federal Election Commission — which sued Swallow and former Utah businessman Jeremy Johnson in 2015 for allegedly breaking a campaign finance law that bans the use of so-called straw donors to bankroll campaigns — said the regulation at issue is the permissible exercise of the FEC’s broad authority.
The two made their arguments to U.S. District Judge Dee Benson, who took the motion for dismissal under consideration.
Benson also took under consideration an FEC motion requesting that he throw out Swallow’s claim that the regulation violates the First Amendment by encroaching “upon fundamental constitutional speech rights inherent in political fundraising and the type of speech incidental to fundraising activities.”
The FEC says the regulation is constitutional and promotes “the important and long-recognized government interests in disclosure of the true sources and amounts of campaign contributions.”
Swallow was not present at the hearing.
The FEC alleges that onetime internet marketer Johnson, at Swallow’s suggestion, funneled contributions to candidates through other people. Under the scheme, candidates for federal offices allegedly got $170,000 in illegal campaign donations in 2009 and 2010.
The funds went to the campaigns of U.S. Sens. Mike Lee, R-Utah, and Harry Reid, D-Nev., as well as then-Utah Attorney General Mark Shurtleff, according to the FEC complaint.
All of the money came from Johnson, even though the donations carried the names of his family and friends, according to the FEC complaint. Swallow allegedly solicited the contributions from Johnson and then directed him to push the money through conduit contributors in amounts of up to $2,400, the federal cap for individual donations at the time. (The cap is now $2,700).
The FEC action — which originally named only Johnson as a defendant, then later added Swallow — asks Benson for a declaratory judgment that the men violated federal election law. Civil penalties in the case could reach tens of thousands of dollars.
Swallow’s attorneys have countered in court papers that the FEC has never accused the former GOP officeholder of doing anything more than give Johnson advice.
They allege their client now is being illegally targeted under a “secondary liability” rule that holds one person legally responsible for helping another.
Furthermore, the regulation should never have been adopted because there is no reference to secondary liability in the statute, the attorneys argue.
Al Hartmann | The Salt Lake Tribune Jeremy Johnson comments to media as he leaves Federal Court in Salt Lake City March 25, 2016, after being found guilty of making false statements to a bank.
At a hearing last fall, Benson said he was concerned that by demanding reams of evidence, the FEC was pursuing the case in a manner that far exceeded its importance.
And at Tuesday’s hearing, the judge pointed out that the regulation says “no person” may make a contribution in someone else’s name and asked Chaudhry how more than one person makes a single contribution.
Chaudhry responded that by engaging in the scheme with Johnson, Swallow helped make illegal contributions.
The case was on hold for awhile beginning in early 2016 while both Johnson and Swallow fought separate and unrelated criminal charges in state and federal court.
In March 2016, a federal jury convicted Johnson on eight counts of lying to a bank in connection with his multimillion-dollar internet marketing company. He is serving a federal prison sentence and appealing the conviction.
A state jury acquitted Swallow in March 2017 of nine public corruption charges stemming from his time in the Utah attorney general’s office, an outcome that turned, in part, on Johnson’s refusal to testify in the four-week trial.
