A pro-Brown flier sent out by For A Better Philadelphia last spring after the PAC was ordered to stop spending money on electioneering. But the PAC said it had already paid for the mailers, and a recent decision found no illegal activity. (Billy Penn illustration)

A judge may have just blown a hole through rules that try to keep big-money political contributors from determining the outcomes of Philadelphia elections.

Or not.

Opinions are sharply divided over the significance of Judge Joshua Roberts’s decision last week to toss out an Ethics Board lawsuit against a super PAC associated with supermarket magnate and former mayoral candidate Jeff Brown. Some say its impact will be narrow, while others say it effectively “subverts” campaign finance law.

In a bombshell move just weeks before the Democratic primary that decided Philly’s likely next mayor, the board alleged that Brown broke the rules by helping the super PAC, called For a Better Philadelphia, raise money in 2022 that it would later spend supporting his mayoral bid. 

Federal law allows super PACs to accept unlimited contributions, while barring them from coordinating electioneering activities with candidates.

But the judge agreed with the argument that Brown hadn’t yet declared his candidacy when he was working with For a Better Philadelphia, and so he couldn’t have violated the law.

A lawyer for the super PAC said Roberts’ decision simply followed the letter of the law and ensures Philadelphia’s rules conform to federal constitutional protections for political speech. She also argued it will likely only affect a small set of newbie would-be candidates like Brown.

“It’s a very narrow universe of people who have never basically run for office before and don’t have an established campaign committee,” attorney Kate Belinski told Billy Penn. “The comments that I have read made it sound like the sky is falling, and I can tell you, the sky is not falling.” 

But the theory that the decision only affects first-time candidates is untested. 

Advocates for election integrity say that the decision may actually allow a broad range of people who plan to run for office to skirt contribution limits, and potentially benefit from “dark money” contributions from undisclosed donors. 

“Allowing candidates to basically evade these rules simply by delaying the announcement of their candidacy — that denies the public all that information and the benefit of [campaign finance] laws,” said Aaron McKean, an attorney with the Campaign Legal Center, a Washington D.C. nonprofit that promotes campaign finance regulation and voting rights.

The decision also illustrates the importance of campaign finance rules at the local level and the challenge of overcoming the limitations of federal policies, said Pat Christmas, chief policy officer for the Committee of Seventy, a nonpartisan civic leadership organization. 

“Until that federal landscape changes, every local government that’s trying to address the influence of super PACs in elections is just going to have a limited tool set. To the credit of our Philadelphia City Council and our Board of Ethics, they’ve done a great deal — in fact, far more than most major cities — to deal with this environment,” Christmas said.

Widely known to be a candidate, but not officially declared

The Ethics Board went to court in April, about five weeks before the May 16 primary, and asked Judge Roberts to halt all spending by For a Better Philadelphia.

At the time, Brown was one of the five major Democratic candidates for mayor. He had a well-funded campaign and good numbers in an internal poll, possibly due to an expansive early advertising blitz. While he had come under criticism for campaign ads perceived as racially insensitive and other gaffes, political observers thought he still had a shot at winning the Democratic nomination.

Campaign finance experts had already wondered about Brown’s unusual relationship to another PAC that had spent more than $1 million, supposedly to provide him with political “education.” Then the Ethics Board and its executive director J. Shane Creamer dropped the stunning allegation that, during the previous year, Brown had helped fundraise for For a Better Philadelphia. 

Subpoenaed emails showed Brown had helped organize a fundraising dinner for the super PAC in August 2022, and Brown admitted he’d worked with the group. In addition, Brown’s Super Stores, where he had until recently been chairman and CEO, contributed $1.25 million to For a Better Philadelphia, and a local sports team — reportedly the 76ers — contributed $250,000 to an associated dark-money nonprofit, the board said.

Brown and the super PAC attacked the suit as a political hit job timed to hurt the candidate before a major mayoral debate. A representative for the PAC called the legal filing unnecessary, as the group had been negotiating with the Ethics Board and had already stopped spending money.

Board director Creamer, however, said the board asked for judicial intervention because the super PAC had continued making election-related expenditures with improperly raised funds — for example, paying for election mailers despite being warned to stop.

The legal dispute focused on what constitutes improper coordination between a campaign and a super PAC. Ethics Board regulations say if they coordinated in the 12 months before an election, the super PAC would’ve been subject to the city’s contribution limit, which was $25,200 a year.

Any money above that amount that the super PAC spent on behalf of the campaign would thus constitute an illegal contribution and subject the organization to penalties.

The Ethics Board argued that the rule covered Brown’s activities in 2022, when he was widely known to be considering a mayoral run but before he actually declared. 

But in his decision last week, the judge effectively said that interpretation had no legal force and thus did not cover Brown in the period before he declared his candidacy.

Even if a loophole is obvious, it might not be illegal

Brown ended up finishing in fifth place in Democratic primary, earning about 9% of the votes to winner Cherelle Parker’s 32.6%.

The lawsuit lived on, however, and may continue to do so for months or years if the Ethics Board appeals Roberts’s ruling. Some experts say the board may have a chance of eventually prevailing, given that its anti-coordination opinion seems to be trying to close an obvious loophole. 

Roberts’ decision uses “a wooden interpretation of the law,” said McKean, the attorney with the Campaign Legal Center. “It basically subverts the purpose of the law. There’s no question that the Board of Ethics can regulate this kind of activity.”

The rule is “an admirable effort to try to close the door on these links between candidates and outside groups which are supporting them,” said Adam Bonin, a Philadelphia election lawyer who has represented Helen Gym and other candidates. “Not only while you’re running, but before you’re running, when you know you’re going to be running. Why else would you be soliciting for them?”

Six mayoral candidates answer questions about their plans for infrastructure, land use, and development in Philadelphia during a March 2023 forum hosted by BUILDPhilly at the Kimmel Center. (Emma Lee/WHYY)

The Ethics Board might also be able to close the pre-candidacy loophole by making the rule part of its official regulations through a formal process that includes taking public comment. That would give it more legal weight.

Belinski, the attorney for the super PAC, said that since the U.S. Supreme Court’s 2010 Citizens United decision allowed super PACs to raise unlimited funds from big donors, federal regulation has moved in the direction of allowing candidates and would-be candidates to help fundraise for super PACs that support them.

Other jurisdictions have managed to regulate campaign finance while abiding by the Supreme Court’s interpretation of the Constitution, and so will Philadelphia, she said.

“If that’s the rule everywhere else, then it can’t be that it’s going to cause the demise of campaign finance in Philadelphia,” Belinski said.

Delaying to coordinate with a PAC vs. building early name recognition

Some experts said it’s difficult to know how the judge’s decision will affect elections, in part because of the specific nature of this year’s race and Philly politics generally.

For one, this is only the second time there’s been a truly open mayoral seat since Citizens United unleashed super PACs. 

While several super PACs have spent money this year trying to influence city voters, Brown was the only candidate accused of working so closely with one, leaving it unclear whether aggressive pre-candidacy coordination might become the norm.

Newbie candidates like Brown might be more likely to delay campaign launches so they have longer to legally coordinate with a super PAC. But those are also the candidates who need to start campaigning early to boost their name recognition, said former City Council member Derek Green, who ran for mayor this year but dropped out before the primary.

Although Brown’s intention to run for mayor had already been widely reported, he had made sure to get out in front of voters early by running the first TV commercials of the race. Green noted that 2007 mayoral candidate Tom Knox, another wealthy businessman with little political experience, had likewise launched his campaign relatively early, in December 2006.

“When you talk about wait to the very end [to declare] — yeah, you could do that,” said Green, who helped create the city’s Ethics Board and campaign finance rules. “But you’ve got to build name ID.” 

In addition, big spending often yields poor results. Brown lost the primary by a substantial margin, as did former Council member Allan Domb, who put $11.7 million of his own money into his campaign. Knox put in a similar amount and got 25% of the vote to Michael Nutter’s 37%.

In 2015, a super PAC supporting Sen. Tony Williams vastly outspent all the other PACs and campaigns, but he received less than half as many primary votes as the winner, Jim Kenney.

Big spending on advertising, whether by campaigns or outside groups, can’t easily make up for “candidate quality” issues, experts say.

“Money matters, but it’s not everything. Obviously there were a number of other candidates who performed far better than Jeff Brown with far, far fewer resources,” said Christmas, of the Committee of Seventy. “Especially for a high profile race, where to some extent every voter is going to be familiar with the candidates, who the candidate is matters a great deal.”

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,...