A complaint filed this week with state’s Bureau of Ethics and Campaign Finance alleges that a news story on a Chattanooga television station appears to depict a Tennessee Supreme Court justice committing a possible Class C misdemeanor.
The video, which was aired July 31 by WDSI Fox61, shows Justice Sharon Lee handing out palm-cards to potential voters and placing campaign signs on a lawn. The signs and cards read, “Retain Judges of the Supreme Court.”
But the yard signs don’t indicate who paid for them. And that could be a violation of Tennessee law, which states that “any communication that expressly advocates the election or defeat of a clearly identified candidate” must “give the reader, observer or listener adequate notice of the identity of persons who paid for and, where required, who authorized the communication.”
State law mandates that the name of the candidate or PAC that paid for the sign “shall appear and be presented in a clear and conspicuous manner.”
A “candidate” is identified under state law as anyone “who has made a formal announcement of candidacy or who is qualified under the law of this state to seek nomination for election or elections to public office.”
The law specifically lists yard signs among the kinds of campaign “communication” that must contain a “disclaimer” identifying who paid for it. The law exempts “bumper stickers, pins, buttons, pens, novelties, and similar small items upon which the disclaimer cannot be conveniently printed.”
Carol Brown Andrews, a spokeswoman for the coordinated campaign for the three justices, told TNReport Wednesday that due to “very limited resources,” the justices have had to rely on “volunteers all across the state making their own campaign signs.”
“We have them all across the state and none of them match. Even out in the hinterlands, I have seen all kinds of them as we have gone around,” she said.
“Volunteers make them, and in-kind them, and it is a different thing altogether,” she said, adding, “I can’t speak to a complaint that I haven’t seen, but I can tell you that there has been an outpouring of volunteers making those signs, and they have been around us.”
“Sounds to me like somebody is doing a Hail Mary pass towards the end of this campaign because there is some desperation going on,” Andrews said.
Complainant a County Election Official — and a Republican
Robert Kyle Mallory, chairman of the Stewart County Election Commission, said he filed his complaint — which also includes additional allegations of campaign-law violations against all three justices — after seeing the Fox61 story, which consisted mainly of Justice Lee denouncing anti-retention claims that she, Wade and Clark have been “liberal,” lenient with criminals and supportive of the Patient Protection and Affordable Care Act.
“It looks almost like arrogance of power,” Mallory said of Lee’s actions shown in the video. “A Supreme Court justice should have a higher level of competence in following the law.”
Mallory, who also serves as chairman of the county Republican Party, swears that his complaint was filed out of a sense of civic responsibility, and not partisan loyalty. “I have taken an oath to this state to inform proper authorities when I see that a law has been broken when it comes to election law,” he said.
A number of high-profile Tennessee GOP lawmakers — like Lt. Gov. Ron Ramsey, House Majority Leader Gerald McCormick and Senate Speaker Pro Tem Bo Watson — are vocally opposing the three Democratic justices getting new terms. Ramsey’s PAC reported giving $425,000 to the anti-retention group, Tennessee Forum.
Mallory, who lives in Cumberland City, acknowledges he is “party affiliated,” but said he “filed this complaint to make sure elections are fair in this state, and that is my motivation.”
“I have been critical of Republicans in the past,” he maintained. “I’ll shoot my arrows wherever I need to if I see something wrong.”
Mallory’s complaint also charges that two separate groups campaigning for retention of the Supreme Court Justices are working in a coordinated fashion but are not reporting it, which he says violates a provision of state law that requires disclosure of financial or in-kind “expenditures” that anyone makes “in cooperation, consultation, or concert with…the candidate’s political campaign committees.”
Who’s the Fairest?
There are two main organizations that have been campaigning for the three justices, “Tennesseans for Fair Courts” and “Keep Tennessee Courts Fair.”
Rick Lewis, a spokesman for the former, told TNReport last month that Tennesseans for Fair Courts is organized as a political action committee. “It is not affiliated with any campaign or other group,” he said. The Tennesseans for Fair Courts PAC has raised most of its roughly $45,000 during the campaign from attorneys, including a $25,000 contribution from the Tennessee chapter of the American Board of Trial Advocates, according to the state’s campaign finance database.
The other group, Keep Tennessee Courts Fair, is not registered with the state as a PAC. A notice at the bottom of the KTCF website indicates it is paid for by the three individual committees to retain the justices — Wade, Lee and Clark. An accompanying notice claims the website “is not an endorsement of any justice by any other justice and shall not be construed, cited or used by any person or organization as such an endorsement.”
The three justices have reported raising more than a combined $1 million, much of it from lawyers in the state.
Mallory’s complaint, filed Aug. 4, alleges that the two pro-retention organizations have been secretly working together on both web-based campaign messaging and production of television commercials.
The campaign spokeswoman for Wade, Lee and Clark denied that charge. “I can say emphatically that that is absolutely false,” Andrews said. “There has been no coordination of any kind.”
But two TV ads in particular caught Mallory’s attention.
Both commercials advocating the justices be retained share some verbatim language, and the content is in places nearly identical. Each advertises that “police and prosecutors urge us to retain” the justices and claim Gov. Haslam “sees danger” in attacks on three state Supreme Court justices. They both also tout that Justices Wade, Lee and Clark “upheld nearly 90 percent of death sentences” that they reviewed.
The only substantive difference is that the Tennesseans for Fair Courts ad claims the Justices Wade, Clark and Lee “kept politics out of the court,” but makes no mention of the Affordable Care Act, President Obama’s signature health reform law. The Keep Tennessee Courts Fair ad attempts to deflect claims by opposition to the three justices that they advanced the ACA, stating, “Obamacare is a federal law, the Tennessee Supreme Court has nothing to do with it.”
The ad, titled “False Misleading,” was posted June 22 on Tennesseans for Fair Courts’ Youtube account. A disclaimer at the bottom of the screen declares that the ad is “Paid for by Tennesseans for Fair Courts — Not authorized by any candidate or candidate’s committee.”
The KTFC ad, titled “Whopper,” was uploaded to the Keep Tennessee Courts Fair Youtube account on July 29.
“After watching both messages that each campaign is currently running on television, I believe there to be substantial coordination between the two campaigns on the messaging,” Mallory wrote in his complaint.
“There is no way that each of these ads could be basically launched at the same time without substantial coordination between representatives of the Justices’ Campaign and the PAC,” he wrote.
Andrews, the Keep Tennessee Courts Fair spokeswoman, rejected any suggestion that the justices have in any way broken campaign laws. “I am confident that everything that we have done has been on the up and up. And I am confident that the other side in the next 24 hours will continue to throw desperate Hail Mary passes at us,” she said.
Tennesseans for Fair Courts didn’t respond to requests for comment.