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Richard A. Spencer
84 Marginal Way, Suite 600 Portland, ME 04101-2480
I207) 772-1941 I207) 772-3627 Fax (800) 727-1941
www. dwml a w. c o m
October 29, 20l2
Anthony Herman, Esq., General Counsel Ruth Heilizer, Staff Attorney Complaints Examination and Legal Administration Federal Election Commission 999 E. Street N.W. Washington, D.C. 20463
MUR 6660 Response and Request for Dismissal Submitted on Behalf of Eliot R. Cutler
Dear Mr. Herman and Ms. Heilizer:
writing on behalf of Eliot R. Cutler in response to the complaint filed by Charles Webster and/or the Republican Party of Maine, Federal Election Commission MUR 6660, (the "Complaint" ) to take advantage of the opportunity offered by your letter to demonstrate in writing that no action should be taken by the Federal Election Commission in this matter. I have enclosed as part of this response an affidavit signed by Eliot R. Cutler correcting the facts of the situation and demonstrating that the allegations in the Complaint are based on a factual misunderstanding and are entirely without merit. I have also enclosed a Designation of Counsel
The essence of the complaint filed against Mr. Cutler is that he served simultaneously as a director of Americans Elect and as a chair of the Angus King for U.S. Senate Campaign (the "King Campaign"}, an.d that in those dual roles he coordinated the television ads supporting Mr. King's candidacy that were prepared, paid for and distributed by Americans Elect (the "TV ads"} with, and/or on behalf of, the King Campaign.
The complaint should be dismissed because it is based on a misunderstanding as to the facts, because it includes no evidence to support its allegations, and because, to the contrary, the evidence clearly demonstrates that Mr. Cutler did not engage in any coordination activity or discussions between the King Campaign and/or Americans Elect with respect to the creation, production or distribution of the TV ads. The only fact alleged in the complaint in support of its allegation is that Eliot Cutler was both a director of Americans Elect and a volunteer of the King campaign at the time the television ads
October 29, 2012 Page 2
were created, produced and broadcast. That, however, was not the case. As the attached affidavit and letter of resignation clearly demonstrate, Mr. Cutler resigned from his position as a director of Americans Elect on June 26, 2012, before (based on Mr. Cutler's information and belief) Americans Elect had any discussions, took any actions, or made any decisions relating to the creation, production, distribution or payment for the TV ads or any other communications supporting Angus King's independent candidacy for U.S. Senate. Furthermore, as Mr. Cutler's affidavit states, he never engaged in any discussions of other activities that would constitute "coordination" under any of the conduct standards that the Commission applies under the "conduct prong" of its coordination regulations.
In the balance of this letter, I will (1) summarize the uncontroverted evidence Commission's conduct standards under the coordination regulation has been absence of any evidence in the complaint to the contrary, and (3) demonstrate not engaged in any coordination between the King campaign and Americans to the TV ads at issue.
that none of the met, (2) show the that Mr. Cutler has Elect with respect
Request or Suggestion. The conduct prong of the Commission's coordination regulations is met if the person creating, producing, or distributing the communication does so at the request or suggestion of a candidate, authorized committee, or any agent thereof; or if the person paying for the communication suggests the creation, production, or distribution of the communication to the candidate, the candidate's authorized committee, or any agents thereof, and the candidate assents to the suggestion. See 11 C.F.R. j~109.21(d)(1).
As the attached affidavit of Eliot Cutler makes clear, he has never suggested to anyone affiliated in any way with Americans Elect that the TV ads be created, produced or distributed. Mr. Cutler's affidavit also provides uncontroverted evidence that no one affiliated with Americans Elect has ever suggested the creation, production or distribution of the TV ads to Mr. Cutler and that Mr. Cutler never assented to such a suggestion on behalf of the King campaign. Furthermore, as one of nine volunteer and largely honorary statewide chairs of the King campaign, he has never been authorized to act as an agent of the King campaign for any such purposes. The only evidence in the complaint to the contrary is the allegation that Mr. Cutler was a director of Americans Elect during the period when the TV ads were created, produced and distributed. That allegation is based on a misunderstanding by Mr. Webster and is demonstrably false. As stated in Mr. Cutler's affidavit and demonstrated by the accompanying copy of his letter of resignation, Mr. Cutler resigned as a director of Americans Elect on June 26, 2012, before, to the best of Mr. Cutler's knowledge and belief, Americans Elect began discussions or made any decisions relating to the creation, production or distribution of the TV ads.
Material Involvement. The conduct prong of the Commission's coordination regulations is met if a candidate, authorized committee, or any agents thereof are "materially involved" in the decision-making regarding the (1) content of the communication; (2) intended audience; (3) means or mode of the communication; (4) specific media outlet used; (5) timing or frequency of
October 29, 2012 Page 3
the communication; or (6) size or prominence of a printed communication or direction of a communication by means of broadcast, cable or satellite. See 11 C.F.R. )109.21(d)(2).
As shown by Mr. Cutler's affidavit he never had any discussions with anyone affiliated with Americans Elect about the TV ads, much less any of the six factors cited in the coordination regulations. Mr. Cutler never discussed with anyone affiliated with the King Campaign or Americans Elect the content, intended audience, means or mode of communication, specific media outlet used, timing or frequency, size, prominence or direction of the TV ads, Furthermore, as one of nine volunteer and largely honorary statewide chairs of the King campaign, Mr. Cutler was not authorized to act as the agent of the campaign with respect to the TV ads or any other communications supporting the King Campaign created, produced or distributed by Americans Elect. The only evidence to the contrary in the complaint is the allegation that Mr. Cutler was acting simultaneously as the chair of the King Campaign and as a director of Americans Elect, but, as stated above, that allegation was based on a misunderstanding by Mr. Webster and is demonstrably false.
Substantial Discussion. The conduct prong of the Commission's coordination regulation is met is created, produced, or distributed after one or more substantial discussions between the individual paying for the communication (or the person's agent) and the candidate or candidate's opponent (or the candidate's agents). A discussion is "substantial" if information about the plans„projects, activities or needs of the candidate that is material to the creation, production, or distribution of the communication is conveyed to the individual paying for the communication. See 11 C.F.R. )109.21(d)(3).
if a communication
As demonstrated by Mr. Cutler's affidavit, he never had any discussions with, or otherwise conveyed information to, Americans Elect or anyone affiliated with Americans Elect that involved the plans, projects, activities or needs of the King Campaign or that was material to the creation, production or distribution of the TV ads. Again the only evidence to the contrary in the complaint is the allegation that Mr. Cutler was acting simultaneously as the chair of the King campaign and as a director of Americans Elect. As stated above, however, that allegation was based on a misunderstanding by Mr. Webster, and is demonstrably false.
In summary, there is no credible evidence to support the allegation in the Complaint that Mr. Cutler coordinated American Elect's TV ads with Angus King, the King Campaign or anyone affiliated with the King Campaign or that he ever assented to a suggestion by Americans Elect that the TV ads be created, produced or distributed either as an individual or as an agent of the King Campaign. None of the three standards under the conduct prong of the Commission's coordination regulations referred to in the Complaint has been met and the Complaint contains no credible evidence to the contrary.
For each and all of the foregoing reasons, I request, on behalf of Eliot R. Cutler, that no action be
taken by the Commission
in response to the Complaint.
There is no reason to believe that a
October 29, 2012 Page 4
violation of the campaign finance laws or the Commission's coordination regulation has occurred and the Complaint against Mr. Cutler should be dismissed.
Mr. Cutler waives the confidentiality provisions of 2 U.S.C. )437g(a}(4}(B)and )437g(a}(12}A with respect to this Response and wishes the matter to be made public by the FEC.
Richard A. Spencer Attorney for Eliot R. Cutler
FEDERAL ELECTION COMMISSION
COMPLAINT AGAINST ELIOT R. CUTLER FII ED BY CHARLES WEBSTER AND/OR REPUBI.ICAN PARTY OF MAINE
) ) ) ) ) )
AFFIDAVIT OF ELIOT R. CUTLER
I, Eliot R. Cutler, having been duly sworn, hereby state under oath as follows:
1. My name is Eliot R. Cutler and I reside at 1172 Shore Road, Cape Elizabeth, Maine
2. I served as a member of the Board of Directors of Americans Elect during the period
from September, 2011 until June 26, 2012.
3. During my tenure as a director of Americans Elect, the focus of the organization was to
field a bipartisan alternative presidential
and vice presidential
ticket for the 2012 United
election through an on-line nomination process. Much
Americans Elect was focused on the recruitment
candidates for president and
In that connection, I joined a group
of American Elect officials
meeting with former Maine governor Angus King on March 26, 2012. Governor King
stated at that meeting that he was not interested in being a candidate for president or vice
4. The effort by Americans Elect to field a bi-partisan ticket for president
failed, and at a meeting
and vice president
Americans Elect board
of directors held by telephone on
May 17, 2012, a decision was made by Americans Elect to end that effort.
5. In late April of 2012, I agreed to serve as one of nine volunteer and largely honorary
Angus King for U.S. Senate Campaign (the "King Campaign"
in the King Campaign in this capacity was announced
in a press release
put out by the campaign on May 1, 2012. In addition to serving in this capacity, from
late April until the present I have served on a volunteer fundraiser for the King
I have never been authorized or delegated any authority„either express or
on behalf of the King Campaign with
that relate in any way to the
implied, to contact or have any communications
Americans Elect, including in particular any communications
TV ads included in the Complaint as Exhibit B (the "TV ads"), or any other
that have or may be created, produced, distributed
or paid for by
Americans Elect or anyone associated with Americans Elect in support
of the King
6. On May 24
11, 2012, I spoke with Kahlil Byrd, the CEO of Americans Elect,
concerning the future
of Americans Elect
and what he intended to do personally with
respect to his own career. I understood from those conversations
going discussions among the officers and inside directors
that there were on-
of Americans Elect
possible efforts to support state and local candidates in 2012, 2013, and 2014 and about
how to better position Americans Elect for the 2016 presidential
election. In this context
Mr. Byrd made some very general references to Angus King's candidacy for the U.S.
Senate and my potential future candidacy for Governor of Maine, but at no time during
or in any previous or subsequent conversations
I have had with Mr.
Byrd or anyone else affiliated in any way with Americans Elect, has there ever been
of plans, projects, activities or needs of those campaigns, of the assent of those
campaigns to outside assistance, or to any specific measures or communications
Americans Elect, or officers and directors or staff
of Americans Elect, might
connection with those campaigns or any other campaigns.
neither Americans Elect nor any one affiliated with Americans Elect, had any
discussions, took any actions, or made any decisions relating to the creation, production,
or payment for the TV ads or any other communications
King's candidacy during the period while I was a director of Americans Elect.
7. On June 26, 2012, I and the other independent members of the Americans Elect Board of
Directors resigned from the board in a telephone board meeting, and I confirmed my
resignation by the letter
attached to this affidavit as Exhibit A.
8. Following my resignation from Americans Elect, I saw Peter Ackerman, the Chair of
Americans Elect and Kahlil Byrd, its CEO, at a fundraising
event for the King Campaign
in New York on July 17, 2012 and at a private dinner that evening.
At no time during
this event or at the private dinner did I have any conversations
the plans, projects, activities or needs the assent
of the King
Campaign, or in any way suggesting
of the King
Campaign to any communications,
actions or expenditures
Americans Elect, or anyone affiliated with Americans Elect, might take in support
On August 15, 2012, I called Mr. Byrd to see
had made any decisions regarding his
personal career plans and he declined to have any conversation with me beyond initial
"We can talk after the election", he said.
10. To summarize, I have had no conversations at any time with Mr. Byrd, Mr. Ackerman or
with anyone else at or in any way connected with Americans Elect regarding the plans,
projects, activities or needs of the King Campaign or that was material to the creation,
production or distribution
of the TV ads. I have never discussed
with anyone affiliated in
any way with Americans Elect the content, intended audience, means or mode
specific media outlet used, time or frequency or size or prominence of
the TV ads. &have never had any conversations
affiliated with Americans Elect in any way suggesting or relating to any assent
King Campaign to outside assistance, or with regard to any of the activities listed in 11
C.F.R. section 109.3(b)(1)through (6) or that meets
of the content
C.F.R. section 109.21(c).
jK day of October,
2012 in Cape Elizabeth, Maine.
Eliot R. Cutler
Personally appeared the above-named Eliot R. Cutler and made oath that the above stated facts are true based upon his knowledge, information and belief, and where based on information and belief, he believes them to be true.
LIBBY R. REYNQLDS
NGTARY PUBLIC, STATE OF MAINE
I'GIIIIMISSIGN F.XP IRIS
XT, 5, 2519
NotaIy Public/Attorney-at-Law Print Name: My Commission Expires:
Pete1 Ackel nlan
Bo~'1l cl Cha11"
Americans 1.':lect 1775 Pennsylvania Suite '1 2].2
ln light of the termination of Anlericans Elect s Online Convention and antIcIpatIon 0( tlie dissolljt'IOI'I of ANeI Icans f.',lect, l31ease accept this let te1 as nip not1ce of' esigna tion «1$ a DII ecto1 ot AIlleI"icf'I ns Elect ef'fective tile close of h 1.IS Iness on june 26, 2012.
yoIlr leadeI ship in guiding Anlet icans f',.lect's worl&.
lx;&hlil Hyr d,
Sec1 et,11y, Anlericans
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STATEMENT OF DESlGNATION OF COUNSEL
Please use aneform for each RespondentlEAtity/Treasurer
FAX (202& 21 9-8923
NAME OF COUNSEL;
The above-natnled individual andtor firnl is hereby designated as Aly counsel and is 8UUlQrized tQ I BGeive BAy AotiflcBtlGAs 8Ad Qther CGKANUAicatlGAs fl"GAl Ule CGAlrAissiGA alld tG act GA Aly behalf before t e ComAlissiGA.
Eliot R. Cut.ler
1172 Shore Road
Information is being sought as part of an investigation being conducted by the Federal Election CoInrnission and the confidentiality provisions of 2 U,S,C, g 437g(a)(1 2)(A) apply. This section prohibits making pubiic any Investigation conducted by the Federal Election Commission without the express vvritten consent of the person under investigation