A government oversight group is asking the Department of Justice to investigate whether Republican Kris Kobach’s Senate campaign violated federal law by using an email list maintained by the nonprofit where Kobach serves as general counsel.
Kobach emailed supporters of the nonprofit We Build the Wall asking for contributions to his campaign for a Senate seat in Kansas. The email provided links to the campaign’s official fundraising page and asked for “a financial contribution of $50, $100, $250, $500, or any amount up to the maximum of $2,800 per individual.”
On Friday, Washington-based watchdog group Common Cause filed a complaint with the Department of Justice. The group alleges it has reason to believe Kobach and We Build the Wall violated federal campaign law.
“One way or the other Kris Kobach appears to have violated federal campaign finance laws through this solicitation for contributions to his U.S. Senate campaign,” Paul S. Ryan, Common Cause vice president for policy and litigation, said in a statement.
We Build the Wall is a 501c4 nonprofit that uses private donations to construct a wall along the U.S.-Mexico border.
Kobach is on We Build the Wall’s advisory board and serves as its general counsel, but both his campaign and the nonprofit insist they are completely separate entities.
The Kobach campaign in a statement on Friday night called Common Cause a “radical leftist organization” and said its complaint was baseless.
“This attack by Common Cause also includes a frivolous letter to the Department of Justice, asking the Department of Justice to launch a pointless investigation. This is also typical of Common Cause tactics and it is intended to cause distraction wherever conservative Republicans are leading in important political campaigns,” the statement said.
The Daily Beast first reported on Kobach’s email.
Brendan Fischer, director of the federal reform program for Campaign Legal Center, told The Star Friday morning that the email “certainly looks like a violation of federal campaign finance law.”
“Corporations — including non-profit corporations like We Build the Wall — are barred from making contributions to campaigns, and from using corporate resources to raise money for candidates,” Fischer said. “This official We Build the Wall email solicitation appears to violate both the ban on corporations soliciting contributions to candidates, and likely results in a prohibited in-kind contribution to Kobach’s campaign.”
Lloyd Mayer, professor of law at the University of Notre Dame, said one key issue is how Kobach’s campaign obtained the list.
Kobach’s campaign would have to pay fair market value for the list, Mayer said, otherwise using it “would violate federal election law.”
And if Kobach’s campaign paid less than fair market value for the list, “that would also be a prohibited private benefit to the campaign, which would violate federal tax law,” Mayer said. “So the key issue is again what, if anything, the campaign paid for the use of the list.”
Even if Kobach’s campaign paid for the list, however, the fundraising solicitation may have run afoul of federal campaign finance law by not including a “paid for by” disclaimer that is required for all campaign communications.
“There appear to be issues on a number of levels with the email,” said Mark Johnson, a partner at the Kansas City law firm Dentons who has experience in election law.
But the lack of that disclosure, Fischer said, leads one to believe the list was not purchased by Kobach’s campaign.
“There is no disclaimer at the bottom saying ‘paid for by Kobach for Senate,’ and the content of the message makes clear it is an official communication from the nonprofit itself,” he said. “It includes the We Build the Wall logo at the top and the content of the email is describing a We Build the Wall event.”
The Kobach campaign disputed there was a problem.
“If any mistake was made with respect to the vendor’s failure to include a ‘Paid for by’ notice on any campaign email, that was immediately addressed by the sending of a correction email to all recipients of the original email,” the statement said.
We Build the Wall didn’t respond to requests for comment.
The relationship between Kobach’s role as a candidate and as general counsel for We Build the Wall has garnered scrutiny from the moment he entered the race.
Most recently, questions were raised after former U.S. Rep. Tom Tancredo, another member of We Build the Wall’s advisory board, publicly praised Kobach’s candidacy while speaking at an official We Build the Wall event.