A judge should dismiss a federal election-fraud case brought against former Utah Attorney General John Swallow because the rule he’s accused of breaking violates his right to free speech and shouldn’t even exist.
That’s the argument made by Swallow’s new defense team in a motion filed late Monday in Salt Lake City’s U.S. District Court.
The Federal Election Commission has accused Swallow and former Utah businessman Jeremy Johnson of breaking a campaign finance law that bans the use of so-called straw donors to bankroll campaigns. The agency alleges Johnson — at Swallow’s suggestion — funneled contributions to candidates through other people.
Swallow’s attorneys argue that the FEC has never accused the former GOP officeholder of doing anything more than giving Johnson advice — an act they say he’s now being illegally prosecuted for under a quietly adopted “secondary liability” rule that holds one person legally responsible for helping another.
It’s a broad interpretation of election law, Swallow’s lawyers from the Washington, D.C.-based Center for Competitive Politics (CCP) contend, that has a chilling effect on free speech.
“This means speakers like Mr. Swallow must be silent or edit their speech to avoid tripping over an amorphous line,” the motion states. “The First Amendment does not permit such unbounded regulations.”
Furthermore, the regulation should never have been adopted, court papers say, because there is no reference to secondary liability in the statute, and, under a U.S. Supreme Court ruling, federal agencies cannot interpret or add the concept into law on their own. That’s a legislative job left to Congress.
Even if the FEC could make a sound argument for its rule — one reportedly based on a judicial decision — the agency failed to inform campaign practitioners of its intentions or reasoning when it adopted the rule creating a new class of liability, the motion adds.
“In other words, the FEC pulled a switcheroo,” Swallow’s attorneys wrote, arguing that the court should dismiss the case and toss out the FEC’s “misguided regulation.”
A spokeswoman for the FEC declined to comment on Swallow’s motion Tuesday morning, saying the agency doesn't talk about ongoing litigation.
The filing asks U.S. District Judge Dee Benson to hear oral arguments on the motion. A hearing has not yet been set.
Swallow and Johnson, a onetime internet marketing mogul, were sued by the FEC in 2015 for an alleged scheme that saw straw donors funnel $170,000 in illegal campaign donations to candidates for federal offices in 2009 and 2010.
The funds went to the campaigns of U.S. Sens. Mike Lee, R-Utah, and Harry Reid, D-Nev., as well as then-Utah Attorney General Mark Shurtleff, according to the FEC.
All of the money came from Johnson, even though the donations carried the names of his family and friends, the FEC complaint states.
Swallow allegedly solicited the contributions from Johnson and then directed him to push the money through conduit contributors in amounts of up to $2,400, the federal cap for individual donations, court papers allege.
The case has been largely on hold since early 2016 as both Johnson and Swallow fought separate and unrelated criminal charges in state and federal court.
A federal jury convicted Johnson on eight counts of lying to a bank in connection with his multimillion-dollar internet marketing company in 2016. He’s serving a federal prison sentence and appealing the conviction.
Then, in March 2017, a state jury acquitted Swallow of nine public corruption charges stemming from his time in the Utah attorney general’s office, an outcome that turned in part on Johnson’s refusal to testify in the four-week trial.
The FEC action against Swallow and Johnson asks a judge for a declaratory judgment that the men violated federal election law. Both men could face tens of thousands of dollars in civil penalties.