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Ethics commission dismisses claim of improper fundraising

Friday, July 16, 2021 by Jonathan Lee

The Ethics Review Commission has dismissed a complaint alleging that Otto Swingler, a self-described “concerned citizen” who made a GoFundMe page in support of Proposition B, violated campaign finance law. 

The commission ruled Wednesday that Swingler, who had intended to use money to buy billboard space for pro-Prop B ads, did not make direct campaign expenditures, as alleged by complainant Joe Cascino, president of Texas College Democrats.

However, commissioners did suspect that Swingler or Save Austin Now, the political action committee behind Prop B, may have violated other campaign finance laws, but could only rule on the complaint at hand. 

Swingler said that when he made the GoFundMe, he was unaware of campaign finance laws and just wanted to support an issue he cared about. After reaching the GoFundMe’s $30,000 goal within a few days, Swingler was made aware of the relevant laws. On the advice of counsel, he closed the fundraising page, revealed the names of the donors and gave the money to Save Austin Now. In a phone call, Swingler asked Save Austin Now to use the money for billboards, which the PAC did. 

Cascino alleged that Swingler broke city law by making a direct campaign expenditure on political advertising when he told Save Austin Now to spend the money on billboards. Only PACs, which have to list their top five campaign donors and include a disclosure statement on political ads, may make direct expenditures. 

Swingler said he did not make a direct expenditure since he only raised the money and then donated it. “We spent no money, period, creating a free-to-make GoFundMe page,” he said, adding that a disclosure statement is only required “when you’re spending money.”

Swingler expressed frustration that he had to go through multiple hearings at the commission after trying his best to comply with the law. “The whole point of (donating the money) was to follow the rules, quite frankly,” he said. “So, it’s just sort of like, I can’t believe that I’m spending all this time and effort and energy and money.” 

Commissioner Jaustin Ohueri argued that the case comes down to whether Swingler “made a direct expenditure as opposed to a contribution, because the code does make a distinction.”

Ohueri argued that even though Swingler coordinated with the PAC to some extent, Swingler did not pay for the billboards. Other commissioners agreed, and the commission voted unanimously to dismiss the case. 

Though commissioners brought up other potential violations, Ohueri argued that they were not germane. “Whether or not Save Austin Now reported their contribution that they received correctly – that’s another matter,” Ohueri said. “Whether or not respondent should have taken some additional steps as it relates to other parts of the code – that again is a different matter.”

Commissioner Betsy Greenberg, in light of these potential violations, urged Cascino to come back with a retooled complaint. “I would encourage the complainant to refile and perhaps not be so specific naming the section of the code,” Greenberg said. This prompted Chair Luis Soberon to remind commissioners not to give advice to either party.

This is the second time the commission has dismissed a complaint against political activity involved in reinstating the city’s camping ban. Earlier this year, the commission dismissed an allegation that Save Austin Now violated city campaign finance law after the nonprofit and the complainant, political consultant Mark Littlefield, reached a settlement. As part of the settlement, the nonprofit agreed to file a 990 tax form for 2020, pay $30,000 toward homeless service providers and cease operations by the end of the year (though the PAC will still operate).

The Austin Monitor’s work is made possible by donations from the community. Though our reporting covers donors from time to time, we are careful to keep business and editorial efforts separate while maintaining transparency. A complete list of donors is available here, and our code of ethics is explained here.

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