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SALT LAKE CITY — Former Utah Attorney General John Swallow has mobilized a free-speech rights group and a former Federal Election Commission chairman to defend him against alleged election law violations.
Lawyers for the Center for Competitive Politics and ex-FEC Chairman Scott Thomas, all based in Washington, D.C., have asked a federal judge to dismiss the complaint against Swallow.
"The FEC's pursuit of Mr. Swallow is a clear overreach of the agency's constitutional authority, made especially dangerous by the fact that it concerns his speech rather than his actions," Allen Dickerson, the center's legal director, said in a statement.
Swallow broke no law, and the regulation cited in the complaint is illegal and violates the First Amendment, according to the filing in U.S. District Court.
The FEC alleges that now-imprisoned St. George businessman Jeremy Johnson used "straw" donors to give $100,000 to former Utah Attorney General Mark Shurtleff, $50,000 to U.S. Sen. Mike Lee, R-Utah, and $20,000 to now-retired Sen. Harry Reid, D-Nev.
Swallow solicited large contributions from Johnson to Shurtleff’s and Lee's campaigns, and told him to give the money to others to contribute in their own names, according to the FEC complaint.
It is illegal under federal law for a person to donate funds to a federal candidate through another person.
But Swallow's attorneys say the FEC doesn't allege Swallow did that. Rather, the FEC claims he provided advice that helped another person violate the law.
Congress never created secondary liability — the practice of holding one party legally responsible for helping another — for that type of campaign finance violation, according to Swallow's attorneys.
"This means speakers like Mr. Swallow must either be silent or edit their speech to avoid tripping over an amorphous line," the court filing says. "The First Amendment does not permit such unbounded regulation."
This means speakers like Mr. Swallow must either be silent or edit their speech to avoid tripping over an amorphous line. The First Amendment does not permit such unbounded regulation.
–Johnson court filing
Not only is the FEC going after Swallow for something he did not do, it is pursuing him for violating a law that does not exist, Swallow lawyers contend.
The FEC case is based largely on statements Johnson made to federal and state agents during a criminal investigation of Swallow in 2013 under a grant of immunity.
Johnson was to be a key prosecution witness in the public corruption case against Swallow and was found in contempt of court when he refused to testify earlier this year. A 3rd District Court jury acquitted Swallow of all charges after a four-week trial.
Because the FEC case is a civil action, there's no threat of prison time, but Swallow and Johnson could be fined thousands of dollars if found guilty.
Johnson is serving an 11-year federal prison sentence for making false statements to a bank in connection with his defunct internet marketing company.
