An essential purpose of the Republican Party is to slow and reverse the tide of tyrannical government. When the Party stops being useful in that, I must wonder whether there is a continued need for it beyond them not being Democrats.
The Alabama Republican Party was worthy of the purpose in 2010. The ALGOP pushed for campaign finance and ethics reform. They enacted their agenda in a special session of the legislature only a few weeks after the great landslide wrought largely by the promises of reform.
Because financial transparency in and around government is an important bulwark against corruption and the tyranny it spawns, the ALGOP enacted a ban on contributions by Political Action Committees (PAC) and tax exempt 527 organizations with the exception that a PAC could contribute to the principle campaign committee of a candidate. This means that a 527 organization can put money into Alabama campaigns only by becoming an Alabama PAC, that a PAC can put money into Alabama campaigns only by becoming an Alabama PAC, and that these entities can contribute funds only to the principle campaign committees of candidates. These provisions are the essence of what is called the Alabama ban on PAC to PAC transfers. This ban and companion reporting requirements have made it harder to disguise the source of campaign money by laundering it between PACs and other organizations.
The PAC to PAC ban was immediately challenged. In 2011, the Alabama Democratic Conference (ADC) sued the state of Alabama and Attorney General Luther Strange to overturn the law as impermissible under the US Constitution. The ADC lost repeatedly in federal courts, most recently in April 2017 when the Supreme Court of the United States (SCOTUS) refused to issue a writ of certiorari, thus upholding the lower court decisions.
The Attorney General of Alabama defended the Alabama law because that is his job. At first this was Luther Strange. And he led by example. In 2014, he promptly returned $50,000 of unlawful contributions from the Republican Attorneys General Association (the RAGA, a 527 organization) as the law required.
The end game belonged to Steve Marshall who succeeded Luther Strange in February 2017. The brief to urge SCOTUS to deny certiorari bears Attorney General Marshall’s name. We can conclude that Attorney General Marshall understood and agreed with the Alabama law he defended in federal court.
In May 2017, Attorney General Marshall registered as a candidate for election to the office he was appointed to by Governor Bentley, a registration that allowed him to begin receiving lots of campaign money, $129,000 in June 2017 on the way to over $3.3 million so far.
Candidate Marshall’s respect for Alabama law seems to have dissolved by February 2018 when he began accepting contributions from the RAGA, the same organization to which Candidate Strange had promptly returned unlawful contributions in 2014. So far Candidate Marshall has taken and not returned $735,000 from the RAGA, 22 percent of his total campaign contributions.
So why is Candidate Marshall breaking the law Attorney General Marshall and Attorney General Strange defended in federal court?
Apologists for Candidate Marshall have offered the alibi that federal organizations are regulated by federal law and do not have to comply with Alabama campaign finance law. This is poppycock. Because the RAGA’s stated mission is to elect Republican attorneys general in the states, the RAGA and its affiliates do not play in federal elections. By not playing in federal elections, there is little federal law that impacts the RAGA. Besides, federal law is supreme only when it conflicts with state law. There are many examples of the federal government and states legislating concurrently on the same subjects, e.g., taxes on income. And on this campaign finance issue there is no conflict between federal and state law because neither sovereign has meddled in the realm of the other.
Apologists for Candidate Marshall also say that the RAGA and its PACs report to the IRS and Federal Election Commission respectively and do not have to comply with the reporting required by Alabama law. This is a dodge, again because the RAGA does not play in federal elections and has no federal election reporting requirements. And this alibi is risible because the primary issue is not reporting, it is Candidate Marshall not returning unlawful contributions as required by Alabama law.
I have not heard much chatter on this issue. Republican leaders may be hoping the issue goes away as complaints to the Secretary of State and Ethics Commission crawl ahead at the speed of government. Democrats may be biding their time for an October campaign surprise, except it will not be a surprise at all.
Candidate Marshall is a scofflaw worthy of impeachment. Running such an ethically flawed person to continue as the state’s chief of law enforcement while he also co-chairs the ongoing Ethics Reform Commission should embarrass the ALGOP even as it lacked the courage to deny his nomination and now compromises the essential purpose of the Republican Party to slow and reverse the tide of tyrannical government.
As Candidate Marshall skates past the law, Democrats will use this embarrassment to defeat him in November and in the process damage the entire Republican ticket. After Hubbard and Bentley, I am disappointed in pusillanimously myopic leadership that has fully embraced another fiasco. Republican voters deserve better.
