In the Matter of: Nader for President 2004
FEDERAL ELECTION COMMISSION
Clarissa Peterson, Treasurer
Oregon Citizens for a Sound Economy
Russ Walker, Northwest Director
Oregon Family Council
Tim Nashif, Staff MUR:
Mike White, Staff
David Herndon, Treasurer
Steve Schmidt, Spokesman
Oregon Republican Party
Kevin Mannix, Chariman
Citizens for Responsibility and Ethics in Washington hereby brings this
amended complaint before the Federal Election Commission seeking an
immediate FEC investigation and enforcement action against Nader for
President 2004, Clarissa Peterson, Citizens for a Sound Economy, Russ
Walker, the Oregon Family Council, Tim Nashif, Mike White, Bush-Cheney
‘04, David Herndon, Steve Schmidt, the Oregon Republican Party, and
Kevin Mannix for direct and serious violations of federal campaign
2. Citizens for Responsibility
and Ethics in Washington is a non-profit, non-partisan organization
dedicated to ensuring accountability in public officials.
3. Nader for President 2004 is
the principal campaign committee for the effort to elect Ralph Nader to
the office of President of the United States. The committee is
registered with the Federal Election Commission (“FEC”). Clarissa
Peterson is the Treasurer of Nader for President 2004.
4. Oregon Citizens for a Sound
Economy (“CSE”) is a non-profit corporation organized under section
501(c)(4) of the Internal Revenue Code. According to its web site, CSE
is a membership organization of “360,000 Americans who are passionate
about changing policy.” www.cse.org/know/president.php. Russ Walker is
the northwest director of CSE.
5. The Oregon Family Council
(“OFC”) is a non-profit organization organized under section 501(c)(4)
of the Internal Revenue Code. According to its web site, “OFC is an
information service for Oregon Christians since 1980.” www.ofc.org. Tim
Nashif and Mike White are officials with OFC.
6. Bush-Cheney ‘04 (“BC ‘04")is
the principal campaign committee for the effort to reelect George Bush
and Dick Cheney to the offices of President and Vice President of the
United States, respectively. The committee is registered with the FEC.
David Herndon is the treasurer of BC ‘04 and Steve Schmidt is a
spokesperson for BC ‘04.
7. The Oregon Republican Party is
a state party committee for the state of Oregon. The committee is
registered with the FEC. Kevin Mannix is the Chairman of the Party.
8. CSE is a “corporation” within
the meaning of 2 U.S.C. § 441b(a). CSE also accepts many
substantial contributions from other corporations. The Washington Post reports, for
example, that CSE has accepted at least $1 million from Phillip Morris,
$1 million from US West, $25,000 from Hertz, $25,000 from
DaimlerChrysler AG, $175,000 from Exxon, $280,000 from the U.S. Sugar
Corporation, $280,000 from Florida Crystals, $140,000 from the Sugar
Cane Growers Cooperative of Florida, and $380,000 from Microsoft. Dan
Morgan, Think Tanks: Corporations’
Quit Weapon, Nonprofits’ Studies, Lobbying Advance Bug Business Causes,
January 29, 2000 (attached as Exhibit A).
9. According to a press release
found on CSE’s website, Oregon CSE members have been working to get
Ralph Nader on the November ballot in the state of Oregon. Citizens for
a Sound Economy, Phone
Script: Conservatives for Ralph Nader?, June 27, 2004 (attached
as Exhibit B). The release notes that “Ralph Nader opposes
nearly every issue CSE fights for” but that having Nader on the ballot
should help to defeat John Kerry.
10. According to CSE’s press
release, CSE provided a script that CSE employees used to make
telephone calls to CSE members urging them to sign a petition to put
Ralph Nader on the Oregon ballot. The release includes the language of
the script, which specifically states that having Nader on the ballot
could “peel away a lot of Kerry support in Oregon, but he has to be on
the ballot first.” Id.
The script continues, “He will make it if at least 1,000 people show up
. . . and sign the petition to certify his candidacy.” Id.1
11. Similarly, according to the
Oregon Family Council’s Tim Nashif, OFC “has been making hundreds of
phone calls to members urging them to help get Nader on the ballot.”
Mr. Nashif stated that his group would “like to take a few votes away
from John Kerry if it would be possible.” American Political Network,
White House 2004 – The Purple States Oregon: With Friends Like These .
. ., The Hotline, June 25, 2004 (attached as Exhibit C).
12. The OFC script states “We’re
calling about a great opportunity for you to help President Bush . . .
If Ralph Nader gets on the ballot, he would pull thousands of liberal
votes that would otherwise go to Kerry and perhaps cause President Bush
[sic] to lose the election. Would you like to take this opportunity to
help President Bush by coming out Saturday night to make sure Ralph
Nader gets on the ballot?” Id.
13. CSE northwest director Russ
Walker explained that “the idea of helping Nader has been widely
discussed among conservative groups and activists.” Id. OFC official
Mike White said “he was encouraged by someone” in the Oregon GOP “to
help boost turnout” for Nader’s convention. White “said the effort” was
“some kind of party outreach thing.” Id.
14. Bush-Cheney ‘04 campaign
spokesman Steve Schmidt explained that BC ‘04 did not officially
sanction efforts by BC ‘04 staff to encourage Oregon Republicans to
support efforts to place Nader on the ballot. He conceded, however,
that while no campaign staffers were making calls to encourage
Republicans to help Nader, “some volunteers may well have made calls
from the campaign’s office.” Id.
1CSE also appears to have a second,
slightly different script. This script states “Ralph Nader needs 1000
signatures to qualify for the ballot, and we need to ensure he gets
them. Ralph Nader is undoubtedly going to pull away some very crucial
votes from John Kerry, and that could mean the difference in a
razor-thin Presidential election. Can we count on you to come out on
Saturday night and sign the petition to nominate Ralph Nader?” American
Network, White House
2004 – The Purple States Oregon: With Friends Like These . . ., The
Hotline, June 25, 2004.
15. As corporations, neither CSE
nor OFC is permitted to make a contribution to a federal candidate. 2
U.S.C. §441b(a) and 2 U.S.C. §431(8)(A)(I). Federal campaign
law defines “contribution” to include “any gift . . . or anything of
value . . .” 2 U.S.C. §431(8)(A)(i). FEC regulations further
For purposes of this section, the term
anything of value includes all in-kind contributions. Unless
specifically exempted under 11 CFR part 100, subpart C,
11 C.F.R § 100.52(d)(1).
the provision of any goods or services without charge or at a charge
which is less than the usual and normal charge for such goods or
services is a contribution.
16. The fair market value of the
costs of the telephone calls made, the costs of creating the scripts,
and the costs of organizing the telephone banks, all used to benefit
Nader for President 2004, constitute prohibited in-kind corporate
contributions. Moreover, if the list of telephone numbers was
purchased, rented, or on loan from CSE, OFC, the Oregon Republican
Party, or BC ‘04, the value of that list would similarly constitute an
illegal in-kind contribution.
17. If Nader for President 2004
was aware that the telephone calls were being made on its behalf, the
campaign improperly accepted an in-kind corporate contribution. 2
18. Because Nader for President
2004 cannot accept corporate contributions, it must reimburse CSE and
OFC for all costs associated with the development and use of the
script, the list or lists, and the telephone bank within a commercially
reasonable time. 11 C.F.R. §114.9(d); FEC Advisory Opinion 2000-20.
19. The Oregon Republican Party,
as a state party committee, cannot use soft money to send out public
communications referring to a clearly identified candidate and
promoting or supporting candidates for federal office. 2 U.S.C.
§431(20)(A)(iii). Included in the definition of “public
communication” is a telephone bank, which is defined as over 500 calls
of a similar nature made within a 30 day period. 2 U.S.C.
§431(22). Clearly then, the Oregon Republican Party could not have
legally made telephone calls utilizing OFC’s script, which refers to
both President Bush and Ralph Nader and supports the candidacy of both
20. What the Oregon Republican
Party could not do directly, it could not do indirectly; yet Mike White
of OFC stated that he was “encouraged by someone” in the Oregon
Republican Party “to help boost turnout” for the Nader for President
2004 convention in Oregon. American Political Network, The Hotline, June 25, 2004.
By encouraging OFC to assist the Nader campaign’s turnout, the Oregon
Republican Party illegally conspired with OFC to evade the prohibition
on the use of soft money to pay for public communications. 2 U.S.C.
§441i(b)(1), 18 U.S.C. §371.
21. BC '04 spokesman Steve
Schmidt said that while "no paid
campaign staff were making calls to encourage" BC '04 supporters in
Oregon "to help Nader," some BC '04 volunteers may well have made calls
"from the [BC '04] campaign office." Id. Mr. Schmidt appears to
be arguing that, while working as agents of BC '04, an unknown number
of BC '04 volunteers each individually, yet somehow simultaneously,
decided to abandon their volunteer efforts for BC '04 and, without the
prior permission or knowledge of BC '04, use valuable BC '04 assets to
carry out individual volunteer efforts on behalf of Nader for President
22. This argument strains
credulity beyond the breaking point. In order for these efforts by
agents of BC '04 to be truly voluntary, each individual who used BC '04
assets in support of their supposedly individual volunteer efforts on
behalf of Nader for President 2004 would have to reimburse BC '04 for
the costs of using any BC '04 assets within a commercially reasonable
time. See, e.g., 11 C.F.R. §114.2(f)(2)(i)(B). These costs would
include, at a minimum, the fair market of value of the BC '04 mailing
list that was used by the pseudo-Nader volunteers to identify BC '04
supporters in Oregon, a pro rata share of the cost to BC '04 of
establishing the telephone bank used to make the calls, as well as the
costs of the local and/or long distance calls that were actually made.
The pseudo-Nader volunteers may also have to reimburse CSE or OFC for
the costs of developing any script that was provided to make the calls.
If, however, that script was provided by BC '04, Mr. Schmidt's argument
that BC '04 volunteers were acting in their own when the made calls in
support of Nader for President 2000 simply fails and the entire cost of
this telephone bank operation is a contribution to Nader for President
2004 by BC '04.
23. Finally, there is a question
as to how much money BC ‘04' spent on the effort to turn out people to
sign Nader’s petition. By allowing CSE and OFC members to use
Bush-Cheney ‘04 telephones to make calls encouraging people to sign the
Nader campaign’s petition, the campaign made a contribution to the
Nader campaign which must be reported to the FEC. 2U.S.C. §434
(a)-(b). Moreover, if the cost of the list of telephone numbers, the
scripts and telephone calls was more than $5,000, Bush-Cheney ‘04 may
have made a prohibited excessive in-kind contribution to Nader for
President ‘04. 2 U.S.C. §441a(a)(1)(C).
WHEREFORE, Citizens for
Responsibility and Ethics in Washington requests that the Federal
Election Commission conduct an investigation into these allegations,
declare the respondents to have violated the federal campaign finance
laws, impose sanctions appropriate to these violations and take such
further action as may be appropriate.
Citizens for Responsibility and Ethics
11 DuPont Circle, N.W.
Washington, D.C. 20036