LANSING, Michigan — A political nonprofit that backed Democrat Gretchen Whitmer for governor will pay a $37,500 fine after Michigan's top elections official concluded that it had violated campaign-finance law by coordinating with her campaign and "expressly" advocating for her election in pre-primary TV ads.
Build a Better Michigan, which was organized by Whitmer's allies under section 527 of the U.S. tax code, spent millionsto boost her successful run in 2018. Following a complaint from the state Republican Party and a conservative group, Democratic Secretary of State Jocelyn Benson concluded that two ads — in which Whitmer spoke on camera — contained express advocacy by showing the words "Gretchen Whitmer ' Candidate for Governor," making them subject to state campaign-finance reporting.
Benson on Friday released a conciliation agreement she entered into a day earlier with Build a Better Michigan, Whitmer and Whitmer's campaign. The respondents disagreed with her conclusion but agreed to pay the fine within two months, while the GOP accused Benson of giving Whitmer a pass with a small fine.
In a Tuesday letter to a lawyer for the 527 group and the Whitmer campaign, Benson said she reviewed a situation that the office had not previously considered, and it was "necessary to set an important and clear precedent that furthers and promotes transparency in our elections."
Unlike an independent "super" political action committee, 527 groups cannot advocate explicitly for a candidate's election or defeat. Unlike candidates, though, they can raise unlimited amounts from individuals, corporations or labor unions.
Campaign ads must comply with state law, Benson said, including "restrictions on the sources and amounts of contributions to candidates." The ads clearly were not independent expenditures because Build a Better Michigan and Whitmer's campaign coordinated on the ads, she said.
State GOP spokesman Tony Zammit called the deal "shameful" and a "slap on the wrist" considering the millions of dollars that were spent on the ads.
The Michigan Freedom Fund, which also had complained to the secretary of state's office along with the Republican Party, said a similar violation from 2014 committed by a GOP-allied group resulted in penalties that matched the amount illegally spent.
"Jocelyn Benson managed in a single afternoon to pull every tooth from Michigan's campaign finance law, to save Gretchen Whitmer and her chief strategist millions of dollars in fines and fees," executive director Tony Daunt said in a statement.
The former president of the 527 group, Mark Burton, is chief strategist in Whitmer's office. Her office referred questions to a spokesman for Build a Better Michigan, which spent at least $2.4 million last year.
"While we respectfully disagree with the Secretary of State's determination and settlement, we fully intend to comply with her ruling to put this matter behind us and move forward," said Mark Fisk, who contended that the ads were a form of "issue" advocacy that stopped short of directly pushing her election.
In late November, then-Republican Secretary of State Ruth Johnson first issued a preliminary ruling that the Build a Better Michigan ads were express advocacy. She too criticized the "small fee," saying it sets a bad precedent.
Benson spokesman Shawn Starkey said it is no small fine and added that Benson had directed staff to consider the context — the novelty of the case — when proposing the informal resolution to the complaints.
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