Ken Chestek says he was blindsided by political mailers attacking his opponent in last fall’s race for House District 46.
At the time, Chestek, a University of Wyoming law professor and a Democrat, had no idea who sent the mailers that sought to make his Republican opponent, Bill Haley, look bad to voters. Within hours Chestek used social media to denounce the attack. The mailers were inaccurate and produced without his permission or knowledge, he said.
“Mr. Haley and I have avoided negative attacks on each other, and I intend to keep my campaign focused on issues,” he wrote in a Facebook post.
Chestek and his opponent both wound up the victims of “dark money,” seeping into an Albany County race from nonprofits with a political agenda and no requirement to disclose their donors.
Haley was a target of the attacks, while Chestek said he had to scramble to distance himself from them and maintain the clean campaign he valued. The fliers may have been designed to get Chestek votes, but it wasn’t the way he wanted to win, he said.
Today, he still has to distance himself from the fliers as he ramps up his next political campaign. This time, however, Chestek isn’t running for office. Instead, he’s engaged in a long-shot campaign to undo the U.S. Supreme Court’s ruling in Citizens United vs. Federal Elections Commission, widely credited with opening the door to more money in elections at nearly every political level. His goal is to place an initiative on the November 2018 ballot that would make Wyoming join 18 other states calling for a constitutional amendment to counter Citizens United.
For this effort, Chestek finds himself teamed up with concerned Wyoming citizens running the gamut from a UW associate art professor to young progressive political operatives to former GOP U.S. Sen. Al Simpson.
In the end, Chestek lost his House race, a defeat he attributes in part to the large Republican voter turnout for Donald Trump.
Meanwhile, news coverage and a complaint from the Wyoming Republican party revealed the fliers attacking Haley came from 501(c)(4) organizations, nonprofits that can legally engage in politics without disclosing their donors.
Such donor anonymity is often labeled “dark money,” because the public doesn’t know who’s paying for attack ads clogging their airwaves and mailboxes during election season.
In the Citizens United decision, the court ruled that corporations and groups like labor unions have the same rights to speech as individual people.
Spending by corporations or unions in elections thus should be protected as free speech, the court ruled. Subsequent court cases citing Citizens United have opened campaign finance, including allowing political spending by 501(c)(4)s — the money that entered Chestek’s race.
Certain nonprofits, registered as “social welfare” organizations, or 501(c)(4)s, can spend money campaigning on behalf of issues. This allows such groups to distribute campaign literature against candidates whose votes do not align with their ideologies, provided they do so independently, and don’t coordinate with any candidate in the race. As non-profits, they don’t have to disclose their funding.
Chestek’s new campaign aims to neuter the Citizens United ruling, allowing the kind of campaign finance reform that would stop anonymous political spending and reduce the impact of big political spenders.
The group considers the outsized role of campaign contributions, PACs, super PACs and 501(c)(4)s to be among the greatest threats the nation today faces. Political stagnation and divisive politics can be traced back to the financial floodgates opened by the Citizens United case, they say.
Simpson called Citizens United a “stupefying” decision. “You can’t have corporate personhood,” he told WyoFile in an interview two weeks ago, “this is sick.”
As a U.S. senator, Simpson pushed for campaign finance reform long before the Citizens United ruling. He also is against anonymous political donations. “That’s gotta stop,” he said. “I mean who can believe that’s good for democracy?”
Shelby Shadwell, an associate art professor at the University of Wyoming, said research shows legislation backed by well-funded lobbying gets passed more frequently than that without it.
“I care about a ton of different issues,” Shadwell said. He is particularly passionate about protecting public lands. “If you look at all these issues what’s underneath the root of it is the money in politics and the fact that we’ve legalized bribery in this country.”
In Citizens United, the court ruled that funds spent on politics but not handed to a specific candidate “do not give rise to corruption or the appearance of corruption.”
Chestek’s and Shadwell’s group is called Wyoming Promise, and is linked to a broader national group called American Promise. Simpson serves on American Promise’s advisory council.
To negate the Supreme Court’s ruling, activists say they need an amendment to the U.S. Constitution. Nationally, American Promise’s goal is to get enough states calling for such an amendment that Congress is forced to act and pursue one. For Wyoming Promise, doing its part means getting an initiative on the ballot — they’re aiming for November 2018, Chestek says — that lets voters choose whether to add the state to those calling for the change. The ballot initiative would be called An Act to Promote Free and Fair Elections.
If Congress doesn’t act within six months of the proposed act’s passing, then Wyoming would call for a constitutional convention. In such a convention, states would send delegates to hash out the amendment. According to Article V of the U.S. Constitution, which governs amendments, any new amendment would then go back out to the states, where it must be approved by the legislatures of three-fourths of them — 38 states.
It’s a long road, Chestek said. Wyoming Promise already has achieved the first step, by getting the 100 signatures needed to get the ballot initiative certified by the Wyoming Secretary of State. Now, it needs to secure 38,800 more signatures by next February. That’s if they want to get the initiative on the November 2018 ballot, Chestek said. State statute says they’ll need signatures from 15 percent of the voters from at least 16 of Wyoming’s 23 counties.
“This is the first step in a very, very long process to get where we want to go,” Chestek said, “which is to get dark money out of politics.”
If the ballot initiative succeeds, Wyoming would join states that have passed similar acts, some via state legislatures, others via the ballot, Chestek said. The latter includes neighboring Colorado and Montana, both of which passed similar ballot initiatives with around 75 percent of the vote.
It takes 34 states to force a constitutional convention, but Chestek thinks change could happen sooner than that if enough states line up behind the effort for lawmakers in Washington to feel pressured.
Even if a constitutional amendment does clear all the hurdles, state and national legislators will then have to pass campaign finance laws. The amendment would only serve as a trump card over the Citizens United ruling when such laws get challenged in court.
All in all, Chestek envisions a process that could span a decade and face endless legal obstacles.
Wyoming Promise is being careful as it pushes its ballot initiative, Chestek said. Members hope to gather more than the required number of signatures as insurance if someone challenges their campaign.
“We want this done by the books,” Chestek said, in case the initiative is contested. The group anticipates resistance and a legal challenge.
“There’s going to be people with big money who like the way things are and they’re going to want to stop us from changing that,” Chestek said.
Clearing his name
Before fighting any legal battles, however, the law professor may need to engage in a few public relations contests to avoid charges of hypocrisy. The Republican party’s complaint against Wyoming Hunters and Anglers Alliance, the group whose signature was on the mailers attacking Haley, remains in limbo as state attorneys argue over jurisdiction.
The Republican party accused the Wyoming Hunters and Anglers Alliance of colluding with a political consulting group, ELLA WY. Chestek, like other progressive candidates, had paid ELLA WY for political work, namely to compile voter data and help him target more likely voters. All three groups had roots with Liz Storer, a progressive activist in Jackson. She told WyoFile at the time that she was trying to even the playing field and counter conservative dark money campaign tactics.
The complaint went first to the Wyoming Attorney General’s office, and then in February was passed to Albany County Attorney Peggy Trent. She told WyoFile she believes the complaint doesn’t fall in her jurisdiction, and is currently in a dispute with the AG’s office about who should proceed with the investigation.
“It’s a state complaint, state action, state statute,” she said, “it involves them.”
Trent herself was once an ELLA client. In 2014, she used the consulting firm to distribute literature for her campaign for county attorney, she told WyoFile. However, she said that did not affect her decision to push the case back to the AG. “I just want to figure out who has jurisdiction,” she said, “and if it’s me then I’ll investigate.”
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Meanwhile, Chestek already has dueled with Ben McKay, the chairman of the Albany County Republicans, via letters to the editor in the Laramie Boomerang.
In early April, Chestek had a letter published in several state newspapers in which he called for a constitutional amendment. He also accused Wyoming’s congressional delegation of putting corporate donors over their constituents in a vote on internet privacy laws. Chairman Ben McKay countered with a letter in the Laramie Boomerang in which he criticized Chestek.
“The hypocrisy of Mr. Chestek’s position on campaign finance would be hilarious, if it were not so sad,” he wrote. Chestek received his largest campaign donations from political action committees, and used ActBlue, which compiles individual donations for progressive causes, McKay wrote. ActBlue is an out-of-state PAC. The names of donors are available from the Federal Election Commission, but aren’t listed with the Wyoming Secretary of State.
Chestek did indeed receive his largest campaign contributions from political action committees, campaign disclosure forms show. Many of them were Wyoming-based and included the Wyoming Education Association PAC, the Federated Firefighters of Wyoming PAC, and various PACs associated with state labor unions. Those PACs spent money broadly and on candidates from both parties during the last election cycle. Chestek received around $900 from ActBlue in numerous donations. He also loaned himself $5,000 of his own money.
McKay wrote Chestek’s reform efforts should start with his own campaign practices, given Republicans suspected Chestek’s campaign of colluding with the groups that sent attack mailers about his opponent, Bill Haley.
“Where was his breathless indignation while WHAA [Wyoming Hunters and Anglers Alliance, a 501c(4)] and Forward Wyoming Advocacy [also a 501c(4)] illegally funded numerous attack mailers against his opponent,” McKay wrote. “All while Mr. Chestek’s campaign manager was named director of WHAA.”
The mailers accused Bill Haley of supporting a state takeover of federal lands, a contentious issue in Wyoming. They were signed by WHAA. Matt Shaffer was listed with the Secretary of State’s office as treasurer for Chestek’s campaign. He was also one of four directors named in the WHAA’s business filing.
Shaffer told WyoFile he had nothing to do with the fliers and wasn’t aware of them before they came out. He had resigned from his position as executive director of WHAA months before the campaign, he said, and while he sat on the board, he no longer did any work with the group. He called the mailers, “basically junk mail,” and said conservative groups do the same thing every election season.
Like other progressive candidates whose opponents were targeted by the mailers, Chestek said there was no collusion between his campaign and WHAA during the election. In a counter letter to McKay’s, also published in the Laramie Boomerang, Chestek said that he had never heard of WHAA before he saw the mailers.
“Within two hours after I learned of that mailer,” Chestek wrote, “I posted statements on my campaign website and Facebook page stating that I did not send the mailer, that I didn’t know who did, and pointing out that my opponent did not in fact support state takeover of federal lands.”
In his letter, Chestek said the incident with WHAA was part of the reason he decided to work for campaign finance reform.
“Since Mr. McKay is apparently very interested in this issue too,” he wrote, “I invite him to join our efforts to reclaim our democracy. Dark money is a bipartisan problem.”
Such a joining, at least with McKay, is unlikely. “I do not believe this warrants a constitutional amendment,” McKay said in an interview. “Especially when the right to do with your own property what you wish is at the core of our democracy.”
McKay said he trusted the court when it came to interpreting the law in the Citizens United ruling. He also said the idea of corporate personhood and campaign finance are separate issues too frequently linked. Businessmen and investors use corporations to take risks without endangering their personal assets. Undoing corporate personhood could hurt the economy and have widespread tax ramifications, McKay said. “I would encourage people to look much more deeply into that topic than I think they do.”
However, he said, as a practiced campaign manager, he actively discourages his candidates from accepting anonymous political donations. Political giving, he said, should be accessible to the public. He just thinks it’s an ethical issue, where legal intervention is unnecessary.
“People have taken advantage of campaign finance law for as long as campaign finance law has been around,” he said.
McKay said he’s willing to give Chestek the benefit of the doubt on his new campaign, though he remains leery of events in the last one.
“I think only time will tell,” if Chestek’s reform efforts are legitimate, McKay said. “I don’t see a whole lot of possibility for truth in the notion that he didn’t know what those groups were doing” in 2016.
Meanwhile, Wyoming Promise has contracted with ELLA WY to use its voter data. The company is supporting Wyoming Promise’s mission, and not directing the campaign, Chestek said. “We’re in charge of this,” he said. “They just happen to have some data capabilities to help us out.”
Chestek does not worry about the consulting firm’s reputation following the 2016 elections. “I think that whole thing is a tempest in a teapot,” he said, “and really doesn’t amount to much at all.”
Wyoming Promise is funded by donations, Shadwell said, and they prefer small donors, from within the state.
To convene or not convene
Chestek and Shadwell believe their initiative is bipartisan. Simpson is a Republican, and an earlier effort to push a resolution through the 2017 Legislature passed out of committee on the back of Republican votes. However, the measure was not introduced to the House floor in time for consideration.
Shadwell pointed to the most recent election, where both Trump and Bernie Sanders led populist insurgencies and touted their independence from large donors. Sanders sourced large numbers of small individual donors, while Trump pointed to his personal wealth as a sign he couldn’t be bought.
“American people on the left and the right think there’s something wrong and politicians are not responding to the will of the people,” Shadwell said.
Some opposition to Wyoming Promise’s ballot initiative may arise from its means, not ends. The idea of a constitutional convention concerns even some of those who support campaign finance reform. During the 2017 Legislature, lawmakers argued over a resolution calling for a different constitutional amendment, one that would force the federal government to move toward a balanced budget. The idea was widely supported by conservatives, but debate centered around fears of a “runaway” convention. The fear is that if delegates gather to amend the constitution, they may not stop at just one amendment.
Even Simpson worries about it. “I don’t like that idea,” he said. “I think that opens the door to a lot of mischief. Once you open the door … some guy wants to go back and diddle with it.”
Shadwell and Chestek, however, believe such fears are unfounded. Legal scholarship has proven a convention could be limited, Chestek said. Any attempt to amend the constitution in ways not specified by the states calling for it could easily be challenged in the courts, he said.
Chestek’s hope is Congress would feel pressure from enough states to write an amendment without a convention. But if not, he said, the chance of a “runaway convention to me is approaching zero.”
Shadwell said they needed the threat of a convention to force congress to act. “To get congress at the national level to fix this problem themselves is crazy,” he said, “because this system is the one that put them into office.”
Despite the obstacles, Shadwell, Chestek and Simpson are fervent about seeing this idea to completion, however long it takes. Chestek shares Shadwell’s concerns about legalized bribery and a congress that favors donors over constituents.
For Simpson, campaign finance is also about a breakdown in civility he’s seen in his home state, he said. He blames dark money for identity politics and harsh rhetoric about gays and transgender citizens, an arena where fights over who uses what bathroom obscure bigger issues.
“Goddamn it who cares?” he said. “Hang a sign on the outhouse that says single occupancy only, that’d be a good start.”
“They’re zealots,” he said of people who fund political campaigning on such issues. “And they intend to impose their view on the rest of us. Do I care how other people live? Hell no! Or who they love or what they do? Whose business is that? Where did they get the God license?”
For his part, Shadwell wasn’t very politically active until recently. This cause is the first major campaign he’s worked on, he said, but he feels it’s his responsibility as a citizen to act.
“I’d rather be working more on my own artwork and hanging out with my kids,” he said, “but I’m doing this for my kids in fact.”
Thank you for a good article. I think Citizens United was a good decision for two reasons:
1) Freedom of speech is good. Having an informed electorate is a good that should not be fought. Having an informed electorate is expensive. The open market of speech will regulate itself. For example, ELLA’s Wyoming Hunters and Anglers Alliance false accusations were negated by other speech.
2) Corporate citizenship is good. One reason we have the wonderful economy we do is we have a pro risk environment. A person can form a LLC and take a business risk and if the risk fails they are not destitute. Corporate rules are much weaker in Germany and they have much less small business start ups. Small business starts ups are the innovation fuel of a vibrant economy. “Corporate citizenship” is a buzz word that when you look deeper has benefits.
Finally, any constitutional amendment that limits freedom has been bad (18th and 21st for example.) The bill of rights is a bill of rights not a bill of prohibitions. To amend a sacred document like the constitution should be to expand rights not limit them. If we have a transparency problem this can be addressed by congress it doesn’t need a constitutional amendment.
Thank you for this important article! I’m also concerned about runaway conventions. Fascists don’t follow rules, that they can finesse, or break by brute force.
The Roberts Court has doubled down on Citizens United. So, expecting their fulfillment of their proscribed US Constitutional role to insure the integrity of our system of checks and balances, seems hopelessly idealistic.
We need to let the sun shine our system, while enough people have faith that it can be fixed. The alternative is ugly.
Foreign interference should be toted up, not ignored. 50% of real estate transactions over $5,000,000.00 are sold to shell companies, which provides money laundering opportunities. China, Russia, and cartels enjoy freedoms & benefits from our system.
Thanks for your thoughts, Ted. I completely understand the fear that many folks have about a runaway convention. However, as a law professor who teaches statutory interpretation (among many other subjects), I have a very hard time understanding how a convention, called for a single purpose, could get away with wildly exceeding the authority it was given. If it tried to do so, it would violate the most basic premise of statutory interpretation: the plain meaning rule. Pretty basic stuff.
To me, while the risk of a runaway convention is non-zero, it is pretty small. But the risk of Congress simply ignoring our calls for an amendment is exceedingly high, since Congress is the problem here: it is addicted to money. So a simple risk analysis suggests to me that we need to include the call for a convention in order to make this work effective.
Thanks for your interest!