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KS-Sen: “Kobach (R) Campaign Can’t Get Its Story Straight on Allegedly Illegal Fundraising Tactic”

In case you haven’t heard:

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The organization behind the viral crowdfunding effort to build a private wall along the southern border with Mexico is under criminal investigation in Florida, where it's registered as a nonprofit, officials confirmed to BuzzFeed News.

Founded by Brian Kolfage, a decorated Iraq War veteran with a history of profiting from fake and conspiratorial websites, We Build the Wall raised more than $23 million in donations to pay for President Trump's border wall.

On Tuesday, the Florida Department of Agriculture and Consumer Services, which oversees charities and nonprofits in the state, confirmed a criminal investigation into the group, as first reported by DCReport. However, it wasn't clear what sparked the criminal probe, with a spokesperson for the state agency saying they “cannot comment on ongoing investigations.”

But there have been concerns raised regarding the use of the nonprofit for other fundraising efforts on behalf of its board members, which include former Trump adviser Stephen Bannon and former Kansas Secretary of State Kris Kobach.

Last week, Kobach reportedly used an email list maintained by We Build the Wall to solicit donations for his Senate campaign.

As a 501(c)(4) in Florida, We Build the Wall can engage in advocacy and political lobbying, but Kobach's solicitation might have violated a requirement to include a “paid for” disclaimer, the Daily Beast reported.

Kolfage refuted there was any criminal investigation into his organization, calling the inquiry, “corporate governance check.”

“There's no 'criminal investigation,'” he told BuzzFeed News. “It's a formality to check our records because of a complaint. Will be squashed in a few days.”

When responding to BuzzFeed News, however, the Florida Department of Agriculture and Consumer Services had specifically cited the state's 119.071(2)(c)1 statute, which prevents an agency from releasing records due to an “active criminal investigation.”

Kobach's campaign did not respond to a BuzzFeed News request for comment.

The Daily Beast dug deeper into this story:

“As a donor to WeBuildTheWall, I humbly ask you to support my run for the Senate,” Kobach’s email pleaded. 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.”

The solicitation likely violated federal campaign finance laws, according to Paul S. Ryan, the vice president for policy and litigation at the group Common Cause.

“At a minimum, this Kobach for Senate fundraising solicitation email appears to violate the ‘paid for by’ disclaimer requirement” for official campaign communications, Ryan said in an email, referencing the requirement that campaigns clearly disclose the financial sponsors—generally the campaigns themselves—behind official political communications.

Kobach’s email might be above board if his campaign paid fair market value for its use of the We Build The Wall list. But in that case it would be legally required to include that “paid for by” disclaimer, which was entirely absent from the Thursday email. That makes it unclear whether the Kobach campaign was actually behind the email, or whether Kobach himself sent it in his capacity with—and using the resources of—We Build The Wall, which would raise a host of other legal problems.

“If the Kobach committee did not pay fair market value for the cost of disseminating this email,” Ryan explained, “then the Kobach committee has arguably committed the more serious campaign finance law violation of receiving a corporate contribution in the form of a coordinated expenditure.”

Even if We Build The Wall sent the fundraising email independently of Kobach or his campaign, and without their knowledge or consent, that would likely raise a host of other issues. It might amount, for instance, to an in-kind contribution to Kobach’s campaign, and as an incorporated entity, We Build The Wall can’t directly donate to federal political campaigns, in-kind or otherwise.

And now The Daily Beast is reporting that Kobach’s campaign can’t even get its story straight:

In an emailed statement late Thursday night, the Kobach campaign’s field director, Kerrick Kuder, denied any knowledge of the email. “That email did not come from the Kobach campaign or any association there of,” he wrote.

But the following day, the campaign released a statement implying that the email was in fact the work of a Kobach campaign vendor. “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.

As of Sunday afternoon, no such email had gone out to subscribers of the We Build The Wall list that Kobach used to solicit campaign contributions and the Kobach campaign had not provided a copy of the email they claimed was sent to The Daily Beast.

“I see no way to reconcile the statement that the ‘email did not come from the Kobach campaign or any association there of’ and the reference to whoever sent the email as a ‘vendor,’ presumably a vendor of the Kobach campaign,” said Paul S. Ryan, vice president of policy and litigation at the group Common Cause.

Ryan’s group filed complaints with the Federal Election Commission and the Department of Justice alleging “reason to believe that solicitations for campaign contributions to [Kobach’s] Senate campaign distributed by We Build the Wall, Inc. violated multiple campaign finance laws [and] the ban on corporate contributions to a federal candidate.”

The second Kobach campaign statements devoted three of its four paragraphs to attacking Common Cause, dubbing it “a radical leftist organization that routinely files FEC complaints against conservative Republican candidates’ campaigns.” The campaign called the complaints “frivolous.”

But the campaign’s inconsistent statements make it difficult to know whether the campaign did, in fact, sign off on the fundraising email, and whether it compensated We Build The Wall at fair market value for doing so.

Those are crucial questions for the legal allegations against the Kobach campaign. If the campaign did pay the nonprofit for use of the email list, the campaign likely violated a federal law requiring that official campaign communications disclose which entities paid for them. If the campaign did not make that payment, the email may have constituted an illegal in-kind contribution to the Kobach campaign.

The Kobach campaign did not respond to inquiries attempting to clarify those matters. We Build The Wall also did not respond to questions.

So, yeah, that’s the latest status with Kobach’s campaign. Now he could still win the primary and we can’t take him for granted. Click below to donate and get involved with these Kansas Democrats campaigns:

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Barry Grissom

Nancy Boyda

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