Politics & Government

Is Dan Forest owed $80,000 in damages over a 2012 political ad?

Lt Gov. Dan Forest speaks during a rally and vigil hosted by pro-life groups in May.
Lt Gov. Dan Forest speaks during a rally and vigil hosted by pro-life groups in May. tlong@newsobserver.com

A group that lobbies for state employees could have to pay Republican Lt. Gov. Dan Forest nearly $80,000 because of a campaign finance violation from 2012.

The North Carolina Supreme Court heard arguments on both sides of that debate Monday morning, years after Forest’s political committee first sued the political arm of SEANC, the State Employees Association of North Carolina, which is called EMPAC.

The dispute involves political ads and a since-repealed state law that said political ads had to include a large photo of either the treasurer or CEO of the group paying for it.

Forest claims he’s owed $78,000 in damages, even though he won the 2012 election and went on to serve two terms as lieutenant governor. EMPAC says that even if there were technical violations in the ads, it shouldn’t have to pay Forest any money because he can’t prove he was actually harmed. The group also says the law Forest is claiming it violated — which the legislature has since gotten rid of — was potentially unconstitutional anyway.

“For (Forest) to come in and ask for an almost $80,000 windfall is offensive to the First Amendment,” said Amanda Martin, a lawyer for EMPAC. (Martin also represents The News & Observer and other media organizations.)

In the 2012 elections, the state’s office of lieutenant governor was open. Forest ran against a Democrat, Linda Coleman. EMPAC aired ads supporting Coleman and opposing Forest. The ad included a photo of Dana Cope, who was then SEANC’s executive director.

Forest claimed that the photo of Cope wasn’t big enough to comply with the law then in place, and that he shouldn’t have been in the photo in the first place since he was not the treasurer or CEO of EMPAC.

However, what’s less clear is how the ad damaged Forest in any amount, let alone tens of thousands of dollars. EMPAC cited Forest’s own campaign manager in contending his campaign was not harmed by the photo in the ad.

Martin said that Hal Weatherman, Forest’s longtime campaign manager who is also running his 2020 campaign for governor, said under oath in a deposition that the Forest campaign in 2012 didn’t do anything different, or spend any additional money or resources, because of the photo issues in the ads in question.

“You must have some injury, some harm, to be able to come into court,” Martin told the Supreme Court on Monday, citing the state constitution as well as previous case law.

Forest’s campaign, however, says that’s not true.

Steven Walker, who is the lawyer for Forest’s campaign as well as his office’s general counsel and chief of staff, said that even if the damages are “hard to quantify” that doesn’t mean they don’t exist

“We allow for cases to have standing for nominal damages all the time,” he said.

Remove picture, or make it bigger?

Walker also addressed a seeming logical fallacy in Forest’s argument. Originally, the Forest campaign only objected to the size of the photo of Cope in the ads. After it did, EMPAC obliged by releasing a new ad with a larger photo of Cope. But Forest also argues that he was harmed by having Cope’s face show up in the ads at all.

Although Cope later resigned and was sent to prison for embezzling from SEANC, in large part due to a News & Observer investigation, Walker said he was a well-known and well-liked figure within SEANC at the time of the ads. State employees who saw the ad might have been swayed to oppose Forest just by seeing Cope’s face, Walker said, while they might not have been similarly swayed by more obscure EMPAC leaders.

So if the Forest campaign is arguing that Cope’s face never should have been in the ads, why did it also want Cope’s face to be bigger and more visible?

Walker said they simply didn’t know that Cope wasn’t the group’s treasurer or CEO when they originally pointed out the violation of the photo size. He said they found that out only later.

But Martin said that makes no sense. It’s a public record who a political committee’s officers are, she said, so if the Forest campaign was actually worried it could have looked it up.

Walker said regardless of when the campaign discovered that Cope’s photo shouldn’t have been shown, his appearing in the ad violated the spirit of the former law that “if somebody was going to do a negative ad against you, the person responsible would stand up and say ‘This is my ad.’”

Martin said the Forest campaign knew who was behind the ad despite the fact that it used the wrong photo.

“Mr. Weatherman provided sworn deposition testimony, ‘I knew who sponsored the ad,’” Martin said. “... This is not a situation where you don’t even know who put out the ad and the candidate is having some trouble addressing it.”

It’s unclear when the Supreme Court will issue a ruling in the case.

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Will Doran reports on North Carolina politics, with a focus on state employees and agencies. In 2016 he started The News & Observer’s fact-checking partnership, PolitiFact NC, and before that he reported on local governments around the Triangle. Contact him at wdoran@newsobserver.com or (919) 836-2858.