Audience members look on as Philly mayoral candidate Jeff Brown speaks at the United Voices for Philadelphia forum on April 29, 2023 at Community College of Philadelphia. (Emily Neil/WHYY News)

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An attorney for a super PAC connected to Jeff Brown is alleging the city’s Board of Ethics went out of its way to harm Brown’s campaign by deliberately filing its lawsuit against the PAC in a way that allowed it to maximize damage to his mayoral bid.

The ethics board last month sued For A Better Philadelphia PAC for alleged campaign violations — bringing the issue to light just a day before the first televised mayoral debate.

“Because they called it an ‘emergency basis,’ they didn’t have to go through their normal routines that would have kept this more confidential,” PAC attorney Matt White told Billy Penn. 

Brown echoed the PAC’s allegations at a mayoral forum Thursday, saying he may sue the Board of Ethics himself. He argued the board shouldn’t have filed the lawsuit during the election campaign.

“I still think it’s politically motivated, and I want to know who was behind it,” he reportedly said after the event.

In negotiations with the board in early April, the PAC had agreed to suspend its activities, White said. Yet on April 10, the board went ahead with the suit, including details like a $250,000 donation from an unnamed Philadelphia professional sports team, possibly the 76ers — a detail that was promptly brought up the following night on TV.

“That debate…was all about that allegation,” White said. “I don’t know what their motivations were or why they did it, but their timing is clearly suspect.”

Ethics Board Executive Director J. Shane Creamer, who has led the board since its creation, said he would not litigate the case in the media or comment on the PAC’s public remarks, other than to note that the judge’s order suspending its activities remains in effect.

When the suit was filed, the board said that the PAC had ignored previous warnings to stop violating the city’s campaign finance rules, making an emergency court petition necessary. “Despite being put on notice… respondents continue to make coordinated expenditures,” the suit said.

A flier sent out by For A Better Philadelphia and received by a voter after a judge ordered the PAC to stop spending money on electioneering. The PAC says it had already paid for the mailers. (Courtesy Billy Penn reader)

The PAC filed its first full response to the board’s lawsuit on Thursday, ahead of a court deadline. It asked the court to dismiss the case and overturn an injunction requiring the PAC to stop spending money on election-related activities.

If its motion to dismiss is not successful, the case could continue for weeks or months, and the PAC could subpoena Board of Ethics emails and text messages related to those claims, White said.

Either way, the decision probably won’t affect the May 16 Democratic primary, in which voters will choose the likely winner of the November mayoral election.

For a Better Philadelphia PAC spent millions on TV ads supporting Brown earlier this year, giving him early prominence in the mayoral race. 

But at this point, many people have already voted by mail, reducing the usefulness of TV commercials, mailers, and other messaging. More than 23,000 Democrats have already voted in Philadelphia, according to state data.

‘Dark money’: For A Better Philadelphia stands out from other super PACs

While several mayoral candidates are being supported by big-money super PACs, For a Better Philadelphia is the only one with unidentified donors. Much of its funding comes through an associated nonprofit, the For a Better Philadelphia 501(c)4, which is not required to report who gives it money.

Earlier this year the Board of Ethics subpoenaed bank records and emails from the PAC and nonprofit, and found that Brown had helped fundraise for them and direct their spending. 

For example, Brown was the keynote speaker at a fundraising dinner the PAC held in August 2022, and he exchanged emails with a consultant for the PAC about planned interactions with potential donors.

PACs are allowed to spend as much as they want on election-related activities, provided they don’t coordinate with individual campaigns. For example, they can urge voters to get to the polls or independently tout the virtues of particular candidates.

But because For a Better Philadelphia did coordinate with Brown, its spending on his behalf actually represented a series of in-kind campaign contributions, the Board of Ethics alleged. The value of the TV ads and its expenditures far exceeded the city’s limits on contributions.

“It was a very well-planned, well-executed scheme to circumvent the [contribution] limits,” Creamer said in April. “But they got caught.”

Judge Joshua Roberts ordered an emergency suspension of PAC activities at an April 10 hearing and two weeks later made the decision permanent through the November general election. However, he allowed the nonprofit to continue paying for election mailers that closely resemble Brown’s campaign literature.

A vendetta against super PACs?

The PAC could still raise and spend money after the primary, White said, on get-out-the-vote or other activities ahead of the November general election.

The group also says it’s important to defend its constitutional right to political speech and push back on what it sees as the Board of Ethics’ overreach on restricting political activity.

In its 2010 Citizens United ruling, the Supreme Court said the government cannot restrict independent expenditures for political campaigns through super PACs funded by corporations, unions, and other organizations.

Yet “there is evidence to suggest that the board…has long intended to diminish the use of super PACs by any means, even before the start of this election season,” said Dan Siegel, a senior adviser to For a Better Philadelphia. 

Siegel pointed to a Board of Ethics regulation adopted last year that bans “red-boxing,” where campaigns release public statements about their strategic needs as a way to guide supportive super PACs without improper coordination. The measure faced pushback from local election lawyers.

“There is this general antipathy towards super PACs,” White said. “Whatever you want to think of them, the United States Supreme Court has said they’re valid. If the city wants to enact some law or rule that they think takes that on, at some point there’s going to be challenges to it.”

The PAC’s legal filing also says the Board of Ethics charges are invalid because they depend on an advisory opinion the board issued in 2018 rather than on city law. 

The opinion said a PAC could improperly coordinate with a candidate even before the person officially launched a run for office, as Brown allegedly did. White said the law requires the person to be a candidate at the time for a violation to occur and cannot be retroactively applied.

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Meir Rinde is an investigative reporter at Billy Penn covering topics ranging from politics and government to history and pop culture. He’s previously written for PlanPhilly, Shelterforce, NJ Spotlight,...