501C3 Status

Devil’s Advocate- Welcome back to the Devil’s Advocates radio show on the Mic 92.1. We have been joined live in studio by Shane Falk, attorney with Lawton & Cates, S.C. and corporate counsel for the People for People People Corporation. Shane, welcome back to the show.

Shane- Thanks for having me back.

Devil’s Advocate- Shane, let’s start. Let’s talk about us. It’s always about us. First we rolled out the People for People People Corporation one short week ago and so far I would say, unmitigated success. We are on the air, we have started running our first commercial spots, not only here on WXXM the Mic, but also for anyone that cheats on us with Vicky, we are also playing them on WIBA AM, at least on the I Heart Stream.

Shane- Good for you guys.

Devil’s Advocate- And we have got the website up and running. We are able to take PayPal contributions now at www.pforppc.com. Have you checked it out yet?

Shane- I have not looked at it, but I will.

Devil’s Advocate- But you have given your blessing to the educational commercials that are PforPPC right now?

Shane- Well not if you say the campaign part.

Devil’s Advocate- As long as I correct myself right away. It is our educational campaign.

Shane- They can be political, they just can’t be campaign.

Devil’s Advocate- It can be an educational campaign, am I right? An ad campaign, as long as it is not a political campaign we are good to go.

Shane- Well remember we talked about this before. They can be political, it just can’t be campaign which the Feds say is advocating for or against a candidate.

Devil’s Advocate- We would never do that. So we just cannot say vote for or vote against, and otherwise we are an educational organization that can have a political message Shane?

Shane- Well exactly. That is what we are trying to illustrate with this project is the absurdity of the so-called issue ads. Clearly they are political. Clearly they are intended to influence elections, but there is this absurd approach to it saying that since they are independent and since they are technically issue, you can do all the political advertising you want to as long as you don’t advertise for or against a candidate.

Devil’s Advocate- So when we heard about this kerfuffle over at the IRS. And we found out that they were giving undue scrutiny apparently to Tea Party groups, but they were also scrutinizing progressive groups and occupy groups just perhaps without the same frequency. But was it this same sort of issue that the IRS was scrutinizing Shane?

Shane- Let me correct you about one thing. They were scrutinizing everybody equally. They had an effort underway to advise the administrative roles associated with 501C3 status, what is campaign activity or not. In the same vein, they were also looking at new applications to determine if they were really were political campaign type groups or if they were truly following the rules as far as independent issue advocacy. So I think if you look at the Issa evidence that came out in front of his committee, it was clear that they were doing it on both sides. It is just because of the gridlock in Washington and the control of the Republicans in the committees that were reviewing this behavior, obviously they were just specifically pulling out stuff associated with Tea Party.

Devil’s Advocate- Oh my understanding, and we went over this earlier today was the IRS inspector general came out and said yeah this was wrong, this should not have been done this way.

Shane- Because they didn’t have specific rules in place yet to define what was a political ad.

Devil’s Advocate- They were sticking it to the conservatives! Come on just say it!

Shane- No.

Devil’s Advocate- So it was just an accident that they lost all the emails, right? That just happens, right?

Shane- No I’m not saying that. That’s a different conversation.

Devil’s Advocate- No it’s part of the same conversation.

Shane- What I am saying is that the large number of groups that on a particular side of the political spectrum use these 501C3 organizations may have, in sheer volume, made it look like they were focusing too much on the right.

Devil’s Advocate- Folks you are listening to the Devil’s Advocate radio show. We’ve got our corporate attorney, Shane W. Falk with Lawton & Cates, S.C. in studio. Shane, let’s talk about the People for People People Corporation. Via 501C3, we can accept tax deductible, anonymous, uncapped, private or corporate contributions and as long as we don’t say vote for Mary Burke or vote against Scott Walker, then we are not electioneering. We are within the mandates of the 501C3s.

Shane- You are electioneering, but you’re not—

Devil’s Advocate- But in a permissible way.

Shane- Correct.

Devil’s Advocate- So when we talked about this IRS, this scrutiny of the Tea Party groups, the grassroots, the Tea Party.

Shane- Well first that is an absurdity. It wasn’t Tea Party grassroots folks that were doing it. It was big money that was creating these organizations.

Devil’s Advocate- Yeah but they convinced a lot of small groups to go and apply for the status and do include this designated names. And these names obviously send up a bunch of red flags, we’ve heard about them a lot. Shane Falk, to your legal opinion should there be additional scrutiny to 501C3, 501C4, 501C27, should this tax status exist?

Shane- Should it exist? Yes I mean there is a lot of benevolent organizations and things like that that have 501C3 status and should. But should there be more scrutiny? Absolutely. People have been crying about this for years, on both sides of the political spectrum. It is just you see them misconstruing Supreme Court precedent and things like that to try and exploit this particular loophole.

Devil’s Advocate- Is there anything under the new Supreme Court rulings that came down that would impact Wisconsin’s regulation of issue advocacy dollars and coordination? If I recall right they were talking the debate with Shimell and Ham debate recently. It kind of lead to say that there is a law and Shimell said, I’ll have to go back and reread in order to really give you an answer. To your opinion have the federal decisions impacted Wisconsin laws at all?

Shane- No as a matter of fact at the 7th Circuit, Judge Sykes has reinforced our statutes associated with coordination of issue advocacy. The focus is on independence and our law has consistently addressed this issue and said it is illegal in the same fashion as the federal courts have which was not appealed.

Devil’s Advocate- So Shane, Attorney General J.B. Van Hollen says the G.A.B.s position on this is tenuous and he refuses to stand with the GAB to legally give representation to the G.A.B. They will have to seek outside counsel. What do you think our current Attorney General is talking about? The tenuousness of the G.A.B.s assertion?

Shane- Remember, the same Attorney General that sued the G.A.B. over a bologna HAVA check issue that was thrown out of court. I have no respect for that position at all. He has said over and over when it comes to homosexual rights that he has to stand up for the constitution and enforce the constitution. Well not only do we have clear statues on this, clear admin rules, but we have got a court of appeals opinion that was denied to the Wisconsin Supreme Court because this is illegal conduct. So I don’t know what he is talking about.

Devil’s Advocate- Well and he didn’t mention the tenuousness of this position when he had 5 months to review the John Doe filing before he decided his office wouldn’t head up the investigation and Francis Schmidtz was created as the investigator for the John Doe. He had that opportunity, didn’t think it was so tenuous back then. But let me ask you—he might have thought it was a hot potato but right—

Shane- The public records show that he didn’t make any comment whatsoever about the validity of the law and the foundation of the court of appeals decision.

Devil’s Advocate- No he just sandbagged, sat on it for 5 months before he passed it along.

Shane- Exactly.

Devil’s Advocate- For those in our audience that may not know your resume, Shane Falk, you came from the G.A.B. You worked for a staff attorney, for that organization through I believe end of August of this year?

Shane- That is correct.

Devil’s Advocate- This week, my buddy went to a Wisc. Politics luncheon and Robin Vos was there. He said 2 years from now the G.A.B. will not exist in its current form. I know Robin Vos has been less than complementary of the GAB, but does he—

Shane- First of all we don’t refer to it as “The GAB,” it is the G.A.B.

Devil’s Advocate- Well I have always used that pronunciation. That’s the first time I’ve ever said GAB, thank you for correcting me. But I do hear it in common use all the time.

Shane- Well if Robin Vos is saying it’s GAB, it’s bologna but the G.A.B. is the G.A.B.

Devil’s Advocate- How would he get rid of that organization? Does he have the legislative power to eliminate the G.A.B. and replace it with a partisan’s elections board?

Shane- Sure.  I mean remember, the creation of the G.A.B. arose in part out of the caucus scandal and what the last straw was essentially was some rules where we had provisions in the statutes that prevented federal campaign committees from converting all of their money into a state account. But the former elections board created a rule out of thin air without any basis that said oh yeah you can do that. And the former elections board right at the end of their tenure changed that rule and said no you really can’t. It is a committee to committee transfer. And that was the last straw. So they, at the time, had bipartisan support for the G.A.B. but with republican control of the assembly and the governor’s office, of course they can change it. It would be a sad day in Wisconsin if they did, but they could.

Devil’s Advocate- Without speaking to any specific confidences you must keep because of the nature of your job, Vos also seemingly has a big issue with Kevin Kennedy heading up the G.A.B. What was your personal experience with Mr. Kennedy? Do you feel like he is out there doing his best to represent election matters in a bipartisan fashion?

Shane- Absolutely. When he bends over backwards for this legislature, and he has much to the chagrin to us on staff, when I used to work there. For instance if you take a look at the photo ID rules, they passed this photo ID legislation, Act 23 and it references college, don’t really understand all of the definitions of college in the statutes, and that it does include technical colleges. They threw a fit that we were going to recognize technical colleges’ IDs, made us institute rules and stuff. And we went in front of him and explained you guys the definition of college is defined in statute. You didn’t change all of the statutes that you needed to if you intended it to be something less. And it has been flashpoints like that where there has been proper application of the law that the legislature doesn’t understand when they are creating the new statutes that it has created some of the tension between the agency and the legislature.

Devil’s Advocate- Shane, until the U.S. Supreme Court came out just the other day and said do not implement for November 4th, we expected implementation of voter ID here in the state of Wisconsin. My understanding is the G.A.B. was leading the charge on that but not of their own volition. Essentially because they had been pressured to do so by legislative leaders like Vos, like Fitzgerald, and of course the governor’s office. All of these guys want this implementation awfully bad. Our current Attorney General J.B. Van Hollen came out, and I guess there is a question coming next, and said basically I am going to continue fighting this. As a former G.A.B. attorney, as an attorney in general, how do you get around a Supreme Court ruling saying you may not implement for November 4th?

Shane- First let’s clarify what that ruling was. It was based primarily on the fact that this change from the 7th circuit said you may enforce it for this upcoming election and it directly came from the governor’s office. They said that yep, we’re doing it. And the G.A.B. and their staff, as dutiful as they are, went forward with that to try and get it in place for the election so that everybody was able to vote that could vote. It is just a temporary ruling by the Supreme Court. If they take the case, they can change their mind. They were just trying to avoid the chaos of this going into place right before the election. As far as fighting that at this point, they can ask the Supreme Court for reconsideration but at 6-3 it is not going to have any impact. So there is a step that they could take, but it is not going to change anything before the election.

Devil’s Advocate- Shane, why did they raise such a stink about the proposed ballot that came out of the G.A.B.? We know Robin Vos and Scott Fitzgerald were mad as hell about this new ballot. Apparently Dems come first because they carried the 2012 presidential elections so when you read your ballot you will see Mary Burke before Scott Walker on that ballot, but apparently they didn’t like the shading patterns or perhaps there weren’t enough lines on there. But they have screamed bloody murder, they have claimed rape partisanship over shading on the ballot. Does any of that ring true to you?

Shane- It’s hogwash. The whole thing is hogwash. The staff has worked tirelessly with the clerks over the years to try and get a ballot that everybody will like. If you remember several years ago when Act 23 was being debated, a lot of the clerks joined up with the republicans and spoke up at rallies and things like that in favor of it. And we have some of those partisan clerks now that, I think, are creating some of the problems with respect to the ballot issue. You also saw some democrats whine about it as well. But it was an effort on the part of the G.A.B. to try and make a uniform ballot and quite honestly the law suit that they filed; they just don’t understand the law. First it has to go through the G.A.B. Second I don’t think that they understood that democrats get listed first because of the last election. And once again, you know it’s a situation where the G.A.B. has authority by statute to do this and they didn’t get it.

Devil’s Advocate- Well that’s why we got to get rid of the G.A.B. Speaker Vos also was critical of how this particular ballot design came down. He said it was an open contract sent to some California democrat who sat on some committee and he insinuated that it was nefarious in some way. Do you have any comment on that?

Shane- Speaker Vos says a lot of things that don’t have a basis in fact or truth.

Devil’s Advocate- So where did this design come from? Did this California person have any—is there any truth that this was designed out of state?

Shane- There was a consultant, but the primary source of ballot design comes from the clerks and their complaints and what you saw after the fall out from the new ballot was from clerks that were in the minority that didn’t agree with the new ballot design. So it is over 1,300 clerks statewide, 1,800 and some by the time you count county. You can’t please everybody. And then you get legislators who don’t understand the law, trying to sue on something in their home county of Waukesha and it is thrown out.

Devil’s Advocate- Just make a construct and make it work. They did the Supreme Court, and you guys do it too.

Shane- No, we follow the law and we follow statutes, but all the statues not just the ones we like to look at.

Devil’s Advocate- Shane, I’ve got one last question for you before we run out of time. We do appreciate your time. We are here in studio with Shane Falk attorney with Lawton & Cates, S.C. and corporate counsel for the People for People People’s Corporation. But this one, again back to Brad Shimmel, he is the republican candidate and apparently Mr. Shimmel used his prosecutorial discretion and chose not to charge Andy Wisebueler, I think that’s what his name is. Andy Wisebueler encouraged his client to destroy evidence. And in fact there may be evidence that Mr. Wisebueler was the one destroying the evidence. We know that Mr. Shimmel basically passed this attorney Wisebueler on who was caught up in the John Doe, was representing Darlene Wink in that matter, pro bono to our understanding. They met at a republican fundraiser, whatever. However the relationship was consummated, this attorney was giving what seems like unethical advice and perhaps illegal advice. Do you think it was appropriate to refer this attorney for ethics charges or do you think that this would raise to a level of greater criminality that may have merited criminal charges, Shane?

Shane- Look any time an attorney is instructing a client to destroy evidence when there is an ongoing criminal investigation, that is what a John Doe is, and I believe that may have occurred even after charges were imminent or after charges were issued. Yeah of course it should be looked at very closely, but there is a lot of stuff that comes out of Waukesha county that you scratch your head and wonder why they made the decision that they did.

Devil’s Advocate- What about the recharge of Scott Jensen once upon a time? I understand he got a sweetheart deal from Brad Shimmel. Is that how you interpreted it when he went through the retrial in Waukesha?

Shane- Nah, I interpreted it as a travesty of justice. Everybody else sat in jail and he got off pretty much scott free.

Devil’s Advocate- You know, he did have to sit through a real estate ethics class once. We would like to thank our guest Shane Falk, attorney with Lawton & Cates, S.C. fine counsel if you need it. Give him a call at Lawton & Cates, S.C. if you need professional legal advice. We do here at the People for People People Corporation and that’s why he is our legal counsel.

Filed under:
Martindale-Hubbell Peer Review Rated
Million Dollar Advocates Forum
Super Lawyers logo
National Board of Trial Advocacy Logo
Top 100 Trial Lawyers
Better Business Bureau