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Thursday, May 8, 2014

Stealth PAC pours money into Arkansas Supreme Court race

Posted By on Thu, May 8, 2014 at 5:28 PM

click to enlarge TIM CULLEN: Objects to stealth PAC TV ads.
  • TIM CULLEN: Objects to stealth PAC TV ads.
For perhaps the first time, a stealth out-of-state PAC with a nasty history is spending big money to influence an Arkansas judicial race — the Arkansas Supreme Court contest between Appeals Court Judge Robin Wynne and Tim Cullen.

Ads are to begin airing in Arkansas Friday — attacking Cullen and supporting Wynne — by the Law Enforcement Alliance of America, a 501c4 organization based in a Washington, D.C. suburb and described on various websites as a conservative group of pro-gun law enforcement officers. But it has dabbled in corporate legal matters, too, and   t has refused to reveal its sources of money. It has been identified as a conduit of money from a West Virginia coal company that spent millions through various sources to unseat a West Virginia Supreme Court justice. The spending in that race finally moved the U.S. Supreme Court to rule that there was a point at which campaign contributions could be construed as requiring a judge to get off a case, referring to the pivotal judge elected by the coal company spending.

At its website, the Alliance has a news release anticipating criticism of its spending in Arkansas and describes the attack it is waging on Cullen. It is a misleading attack, like the ads, which I'm told claim Cullen has argued that child pornography is a victimless crime. The LEAA anticipates in a news release that somebody will "attack the messenger," the LEAA. No wonder.

Cullen has not described child pornography as a victimless crime. Cullen practices appellate law. He was appointed in 2006 by the 8th Circuit U.S. Court of Appeals to provide appellate defense (essentially an appellate public defender) to argue for a person convicted of possession of child pornography and talking on-line with someone he believed to be underage but actually a police officer. Cullen didn't argue for the innocence of the person or that child pornography was a victimless crime. He argued against the sentencing judge's departure from federal guidelines to enhance the sentence. Cullen argued that the person with whom the suspect talked was not a 13-year-old, but an adult police officer, whom the man arranged to meet in Little Rock after flying in from Wyoming. He lost the appeal.

click to enlarge ROBIN WYNNE: Beneficiary of ad buy.
  • ROBIN WYNNE: Beneficiary of ad buy.
Cullen didn't argue innocence or for the suspect's release from jail. He argued against the length of sentence. He never argued that child porn was a victimless crime.

The facts don't matter in stealth smear ads. An out-of-state group will blast Cullen with an unprecedented amount of TV advertising and you won't know who's paying for it. It might be about child porn. Another agenda might well be at work, maybe "trial lawyers" generally, in that they come in for a sneer in the LEAA news release. Mark Henry of Fayetteville, a former law partner of Cullen who's helping Cullen with his campaign, said he's learned that some $200,000 in ads will be run next week, more than half in the Little Rock market. This is a "game changer" in a race where the two candidates together have raised $113,000 through the most recent reports, with $80,000 of that by Wynne, who entered the race first.

Cullen has talked with Wynne, who reportedly said he knew nothing about the ads. Cullen wants Wynne to repudiate them. No word on a response to that yet.

Electing judges is a bad idea precisely because of the corrosive power of money. And stealth money is even more corrosive. Stealth PACs are an affront to open government, particularly out-of-state groups with shady agendas who've shown themselves willing to front corporate money for self-interested parties such as West Virginia environmental despoilers. Who really knows what this ad is about? I'd be willing to bet it is about more than child porn. The LEAA claims its interests include gun control, concealed carry, illegal immigration, capitol [sic] punishment, public education, privacy, use of force, officer safety and others.  In Wisconsin, it went after a black judge for supposedly being soft on crime by rappers. There's much more:

The organization was sued in Texas in 2002 for failing to disclose campaign contributors 

The group was also very active in unseating West Virginia Supreme Court Justice Warren McGraw.

In 2004 the LEAA got most of its money from Massey Energy CEO Don Blankenship, who had said in numerous interviews that he would do "whatever it takes," to get rid of Maag. It is also suspected that the organization has taken in large contributions from other interests groups interested in stacking state Supreme Courts with pro-business justices (see U.S. Chamber of Commerce).

In 2002, LEAA spent $1.5-2 million to air ads against Democratic candidate Kirk Watson's bid for Texas Attorney General. At the time, they also spent money in support of two other Democratic candidates' bids for the Texas State Legislature, one of whom was Mike Head. In 2003, Watson and Head filed a complaint in state court, accusing LEAA of using corporate funds in a political campaign in violation of Texas law.

LEAA knew this criticism was coming. Said its news release:

LEAA predicts, "Some politicians and opinion leaders will object to LEAA's exercise of free speech; they will try desperately to redirect away from our message and instead play "gotcha-games" and attack the messenger. As much as some may wish we don't have free speech rights, LEAA's ads speak for themselves and are supported by the public record and facts!"

I don't object to free speech. I object to shadow speech with no financial disclosure, particularly when it's misleading to the point of dishonesty. Supported by facts? Tim Cullen will argue that's not true. But he won't have $200,000 to get his message out.

Should facts matter, here's the 2006 brief on which the LEAA ad rests.
My inquiry to LEAA produced only an e-mailed reference to the news release, no answers to questions I posed about the ad buy or accuracy of the ads. So far, the person who e-mailed from an LEAA address has not provided his or her name. That anonymous person did provide an 8th Circuit decision calling "specious" Cullen's argument about lack of victim in this cse. It agreed the officer was not an adult but said the inability to identify children in the photos the man possessed did not make those crimes victimless.

In any case, even the most odious criminals are entitled to a defense. Does that disqualify their lawyers from being judges. The LEAA would seem to argue that.

The Cullen campaign wrote Wynne:


Judge Wynne,

You are aware of the multi-hundred-thousand dollar ad buy placed today by the Law Enforcement Alliance of America, commonly known as a Stealth PAC from Maryland.

The ad contains patently false statements that we believe violate the canons of judicial ethics. We ask that you formally repudiate the ads, in writing, rather than enjoying the direct, unfair benefit from such false ads.

Attached is the .pdf version of the brief on file with the 8th Circuit Court of Appeals filed by Tim Cullen, by appointment from the 8th Circuit Court in the case in 2006. You now have accurate information against which we ask you to make a direct comparison to confirm the falsity and misleading nature of the advertisements that are being aired for your benefit.

We are providing you with this information so that you will be able to make an informed decision on whether you intend to formally repudiate the false and misleading attack ad being advanced by the Law Enforcement Alliance of America.

We will be giving a statement to the press later this evening, but we wanted to offer you the opportunity to learn the truth and the proper context against which to judge the false statements. We will either include a statement that you formally repudiate the ad, that you refuse to do so, or that you have refused to respond.

Again, we affirmatively ask that you provide us with an answer on whether you will formally, and immediately — repudiate the false and misleading attack ad being placed by the same out of state entity that poured money into the West Virginia Massey Coal fiasco.

We will be circulating a copy of this email to the press to confirm our efforts to reach you.

Thank you,
Mark Henry

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