SALT LAKE CITY — John Swallow wants a federal judge to not only dismiss the Federal Election Commission complaint against him but invalidate the campaign finance rule he allegedly violated.
Allen Dickerson, a lawyer for the former Utah attorney general, argued Tuesday in U.S. District Court that the process the FEC used to come up with the regulation was "deeply flawed."
The FEC alleges that now-imprisoned St. George businessman Jeremy Johnson used "straw" donors to give $100,000 to former Utah Attorney General Mark Shurtleff, $50,000 to U.S. Sen. Mike Lee, R-Utah, and $20,000 to now-retired Sen. Harry Reid, D-Nev.
Swallow solicited large contributions from Johnson for the campaigns, and showed him how to circumvent FEC laws that limit individual donations to $2,400, FEC lawyer Sana Chaudhry told Judge Dee Benson.
"Mr. Swallow initiated this scheme," Chaudhry said.
It is illegal under federal law for a person to donate funds to a federal candidate through another person. Chaudhry contends Congress allows the FEC to write regulations to fill a "gap" in the law, and Swallow "aided and abetted" in making illegal donations.
Dickerson said the law is silent on secondary liability — the practice of holding one party legally responsible for helping another — for the type of campaign finance violation Swallow allegedly committed.
"There is none," he said.
Benson said he was having a problem with the FEC argument that someone could assist another person in making a campaign contribution.
"I just don't see it," he said. "How does more than one person make a contribution? Either you make a contribution to a candidate or you don't."
Chaudhry asked Benson to refer the regulation back to the FEC rather than remove it from the books if he finds it invalid. The judge did not issue a ruling Tuesday.
Swallow, who is represented by the Institute for Free Speech based in Washington, D.C., did not attend the hearing.
The FEC case is based largely on statements Johnson made to federal and state agents during a criminal investigation of Swallow in 2013 under a grant of immunity.7 comments on this story
Johnson was to be a key prosecution witness in the public corruption case against Swallow and was found in contempt of court when he refused to testify earlier this year. A 3rd District Court jury acquitted Swallow of all charges after a four-week trial.
Because the FEC case is a civil action, there's no threat of prison time, but Swallow and Johnson could be fined thousands of dollars if found guilty.
Johnson is serving an 11-year federal prison sentence for making false statements to a bank in connection with his defunct internet marketing company.