Photo | Lagniappe

Attorney General Steve Marshall was cleared by the Alabama Ethics Commission last week for receiving a $750,000 campaign contribution from the Republican Attorneys General Association.

Citing insufficient evidence, the Alabama Ethics Commission has dismissed a complaint filed against Attorney General Steve Marshall accusing him of campaign finance violations.

On Dec. 19, in a 3-2 split the commission voted to toss the charges, which originated from a complaint filed by Marshall’s 2018 Republican primary opponent, former Attorney General Troy King.

Commission members Beverly Brady and Charles Price voted against dismissing the complaint, but Jerry Fielding, Frank Ellis and John Plunk found there was insufficient evidence to refer the commission’s findings to a district attorney who could then choose to present the case to a grand jury.

The allegations at the heart of the complaint centered around a $750,000 donation Marshall’s campaign received from the Republican Attorneys General Association (RAGA), a federal political action committee which donates to Republican candidates across the country.

As a tax-exempt organization organized under Section 527 of the U.S. Internal Revenue Code — often referred to as a “dark money” group — RAGA does not disclose its donors.

The problem with the $750,000 donation, according to King’s complaint, was that RAGA accepts PAC-to-PAC donations, which Alabama’s Fair Campaign Practices Act has prohibited since 2010 in order to prevent the sources of large contributions from being obscured.

When the donation was first reported this summer, Marshall’s campaign argued the prohibition wouldn’t apply to federal PACs set up outside the state. His opponents argued state law defines a PAC the same way whether they’re formed in-state or out-of-state.

Ethics Commission Director Tom Albritton was also cited in statewide reports saying he’d advised other candidates accepting that type of donation they wouldn’t be legal under state law. Marshall’s predecessor, former Attorney General Luther Strange, also returned a $50,000 donation from RAGA in 2014, but Marshall declined to do the same.

Matt McDonald, who was an attorney for Marshall’s campaign and represented the AG before the ethics commission, maintains Alabama’s prohibition of PAC-to-PAC transfers only applies to PACs created within the state.

He told Lagniappe the commission got it right, but also suggested Marshall might support changing the law to disallow donations to Alabama candidates from organizations like RAGA in the future.

“I believe the decision was correct and accurate based on longstanding guidance from the Alabama Secretary of State’s office as well as the complete absence of any attempt by Alabama to regulate federal PACs under the Fair Campaign Practices Act,” McDonald said. “Maybe the Legislature will amend [FCPA] to include that, which the AG would have no problem with and would probably support, but that hasn’t ever happened.”

However, as Ellis mentioned at the meeting, there was confusion at one point about whether the guidance from Secretary of State John Merrill’s office was accurate. Emails to Merrill’s chief of staff seeking clarification on the matter did not receive an immediate response.

That’s why members of the Ethics Commission’s own staff, Albritton included, proposed the commissioners issue an advisory opinion to Merrill clarifying “federal PACs are subject to the FCPA if they receive contributions, anticipate making a contribution or are making expenditures on behalf of an Alabama elected official.”

Reading from the proposed opinion, Albritton said “all PACs must register in Alabama, including federal PACs, and contributions that are unlawful — for example, the PAC-to-PAC transfers — are enforceable under the enforcement provisions of the FCPA.”

Ellis said he wasn’t sure whether he supported the opinion as written, and ultimately joined Fielding and Plunk in rejecting the staff’s recommendation along the same 3-2 split. The commission did pass a separate motion urging the Legislature to take up the issue in 2019.

“We don’t have another an election cycle until after the Legislature meets again. I think the Legislature ought to address that issue one way or another,” Ellis said. “I don’t see how anybody would be hurt by postponing this until the Legislature has at least one session to look at it.”

McDonald also suggested donations from federal political organizations like RAGA aren’t at all uncommon in Alabama politics, which he also pointed out while defending Marshall before the ethics commission.

“I produced to the commission probably a 24-page spreadsheet of Alabama candidates who’ve received contributions from federal PACs,” he said. “There are hundreds, probably thousands of them.”