Note: This is Part 2 of a three-part Eagle series, “Anatomy of a Smear Campaign.”
The money used to attack Brandon Whipple with false claims of sexual harassment was collected through a nonprofit charity controlled by a state lawmaker. The charity was originally formed to raise money to help build a new football field at a Wichita high school.
The secret and potentially illegal funding scheme was spearheaded by Wichita-area elected officials and bankrolled by business interests with ties to City Hall, according to a Wichita Eagle investigation and documents in a defamation lawsuit filed by Whipple, who unseated incumbent Mayor Jeff Longwell in November.
Sedgwick County Commissioner Michael O’Donnell and Wichita City Council member James Clendenin asked political patrons to cut checks to the Fourth and Long Foundation, a charity owned and controlled by Wichita Republican state Rep. Michael Capps.
Using the charity as a vehicle to accept payment, which also allowed them to keep donors anonymous, O’Donnell and Clendenin raised $10,000.
They tapped the Wichita Area Builders Association, downtown developer Gary Oborny of Occidental Management and the Cornejo Companies, a prominent City Hall contractor, according to court documents.
O’Donnell and Clendenin would not say who else, if anyone, gave to the campaign or who asked them to raise the money.
The officials mobilized to try to save Longwell, whose re-election was at risk after a Wichita Eagle investigation showed how he steered a $500 million city contract to friends who had given him thousands of dollars in undisclosed gifts.
Using a charity to collect money for third-party political attack ads, which hides donors’ identities — and creating an anonymous out-of-state company to disguise campaign organizers — is about as bad as it gets, according to a national expert on political ethics.
Running money through a charity for political ads is illegal, said Daniel Weiner, deputy director of election reform at New York University’s Brennan Center for Justice.
It bypasses the donor disclosure required by law when contributions are made directly to a candidate and can give the donors a tax break, in essence a government subsidy for attack ads, he said.
“This is sleaze with a capital S,” Weiner said.
Matthew Colborn, a 22-year-old videographer and campaign manager for Capps, has claimed sole responsibility for producing the video.
O’Donnell and Clendenin said they thought the money would be used on political billboard advertisements, not a video falsely accusing Whipple of sexual harassment.
No billboards were ever posted.
Unsportsmanlike conduct: charity broke rules
The Fourth and Long charity was originally set up as a vehicle to raise money for a new football stadium at Wichita West High School, an economically disadvantaged school where nine out of 10 students qualify for free or reduced-price lunches.
The foundation broke its own rules by handling campaign money.
All funds collected by Fourth and Long were supposed to go to “create an environment of success for low-income, at-risk or otherwise defined disadvantaged student-athletes and the educators, administrators, mentors and coaches who support them,” according to its incorporation papers, filed by Capps with the Kansas Secretary of State’s Office in 2013.
As a 501(c)(3) corporation, Fourth and Long also broke IRS rules that prohibit public charities from meddling in political campaigns, Weiner said.
Such a breach can jeopardize a charity’s tax-exempt status and could result in a fine, he said.
Weston Shartz, one of the City League’s most successful football coaches and a founding Fourth and Long board member, said he thought the foundation dissolved years ago after failing to raise enough money to build a new stadium at West High, where Shartz was head coach and Capps was an equipment manager for the football team.
“It faded away like a dandelion in the wind,” Shartz said. “I thought it was gone.”
Despite the failure to raise enough money, Capps kept the foundation active by filing annual reports with the state. It never raised more than $50,000 in a single year, IRS filings show, so the charity is not required to disclose its donors nor is it required to say how much money, if any, was raised.
As a tax-exempt entity, the foundation’s forming documents state that “no substantial part of the activities of the corporation shall constitute the carrying on of propaganda or otherwise attempting to influence legislation” or intervening in “any political campaign on behalf of, or in opposition to, any candidate for public office.”
Clendenin, who owns two businesses with Capps and shares office space with Capps and Colborn, said running the money through Capps’ foundation didn’t “raise any flags” for him and was a matter of convenience.
“It was to help Jeff Longwell,” Clendenin said. “We didn’t know how we were going to do that. And then, of course, the checks were written to the Fourth and Long Foundation to be able to handle making that happen. . . . It was a mechanism that was already an organization that could receive money. It was the easiest way to be able to collect money.”
O’Donnell said it was Capps who suggested handling the money through the charity.
“Michael Capps says, ‘Hey, I have a foundation that can . . . do the billboards and stuff for you,’” O’Donnell said. “So I told him ‘Great, I’ll go raise some money.’”
Capps denied his foundation was involved in the production of the video, again citing the billboards that never appeared.
“As part of a digital billboard ad campaign conceived by O’Donnell and Clendenin, Mr. Colborn deposited some checks to pay for digital billboard ad space,” Capps said in an e-mail to The Eagle.
The billboards never materialized and the money was diverted to the video project, Clendenin and others confirmed.
Subsidizing attack ads
Funneling any type of political contribution through a tax-exempt charity is supposed to be forbidden by the Internal Revenue Service, said Weiner, the elections expert at the New York University’s Brennan Center.
“The IRS is supposed to enforce rules that prohibit political spending and campaign spending by charities, but the IRS just doesn’t,” Weiner said. ”It’s common knowledge. They’ve been cowed into submission.”
Weiner said there’s a powerful lobby primarily funded by wealthy corporate interests, “who cry bloody murder every time the IRS suggests that maybe political speech, as important as it is, shouldn’t be tax deductible.”
The Protect Wichita Girls video and its hidden funding scheme is more offensive than most because it was part of a local election, where power is concentrated in fewer elected officials and it takes less money to swing an election, he said.
“Politicians should never be exempt from criticism,” he said. “But if you’re going to try to intervene in an election, and influence voters, I think in most circumstances it’s not unfair to say that you should identify yourself. You should be willing to stand behind the messages you’re paying for. And if you’re not willing to, then that’s an issue.”
Equally troubling is that Fourth and Long doesn’t have to pay taxes. Pushing money through a charity would allow the political contributors to write off their donations on their taxes, he said.
“That’s adding insult to injury,” he said. “Not only do you have secret, unaccountable money, but that secret, unaccountable money was tax deductible.
“So you, the taxpayer, are in essence directly subsidizing attack ads.”
The shell company
Loose disclosure laws allowed the smear campaign’s organizers to operate in corporate silhouette.
The attack was launched through a shell company in New Mexico, the only place in the country where limited liability companies don’t have to provide the names of significant owners to the state.
Colborn said in an April affidavit that he alone set up the New Mexico limited liability company, “Protect Wichita Girls, LLC.”
That testimony directly contradicts a statement that Colborn made in a Dec. 31 court filing claiming “Colborn is without knowledge regarding New Mexico LLCs or the purpose of the corporation.”
Also, the actual name of the company behind the video was “Protect Wichita’s Girls, LLC,” which differs slightly from the name of the company Colborn now says he founded.
The company’s address was a Wyoming mail drop and its registered agent was a Wyoming LLC mill that creates tens of thousands of companies and acts as their registered agent, allowing the actual business owners to remain anonymous in states that don’t otherwise require public disclosure.
The company, Registered Agents Inc., has local offices in all 50 states and advertises its service to business owners as “your only real connection to the outside world.”
A Capps-owned company, Krivacy LLC, uses the same Wyoming office of Registered Agents Inc. and the same Wyoming mail drop as Protect Wichita’s Girls LLC.
Krivacy purchased a website domain called protectwichitagirls.com about the time the video was released, records show.
A history of the site obtained through Domain Research Suite shows the site name was originally owned by Capps’ company.
After Capps’ name surfaced in the controversy, the site domain ownership was moved behind a hosting service called NameSilo, which hides the identity of its domain holders.
Big business money
The names of donors first surfaced in court filings after Colborn, the video producer, contradicted previous statements he had made in the case.
In December, Colborn admitted in court records to producing the “Protect Wichita Girls and Stop Brandon Whipple” video, featuring young women reading false accusations from a script. But he said he did it at the behest of unnamed John Does in the lawsuit.
Months later, Colborn offered to provide Whipple’s attorney, Randy Rathbun, evidence in exchange for a settlement dismissing him from the case.
At a March 13 meeting with Rathbun, a paralegal and Colborn’s attorney, Colborn swore to tell the truth and explained who else was involved. According to a filing by Rathbun, Colborn disclosed the following:
▪ O’Donnell ran the operation to defame Whipple and authored the bogus script.
▪ Clendenin was in charge of raising money for the ad.
▪ The Wichita Area Builders Association, Gary Oborny and the Cornejo Companies gave money for the ad.
▪ The money for the ad was run through Capps’ Fourth and Long Foundation.
Rathbun attached a copy of a $1,000 check from Oborny to Fourth and Long as proof of Oborny’s contribution.
Oborny, one of the region’s most prolific and successful commercial developers, told The Eagle in e-mails that he donated $1,000 with the understanding that the money would be used to reprint and distribute a 2017 college newspaper story.
Persons quoted in that Wichita State Sunflower article criticized Whipple and other lawmakers for using college-age Statehouse interns as designated drivers when attending legislative and political functions where alcohol was served.
“I was contacted only by Michael O’Donnell in October 2019 to support a fund that was going to only reprint an article that had previously run,” Oborny said in an e-mail. “I contributed $1,000 to this fund.
“Once I learned my contribution was used for the Protect Wichita Girls video, I demanded return of my contribution. I received all of my contribution back promptly.”
Oborny called the video “inappropriate.”
“The video is not something that I was aware of and I would not have supported it in any manner,” he said. “I was quite disappointed with how this unfolded — the fact that my funds were used for an entirely different purpose than what I was told.”
Oborny, chairman and CEO of Occidental Management, partnered with the city in a multi-million-dollar public-private project to redevelop the Historic Union Station property in downtown Wichita and last year purchased the Sprint Corp. headquarters in Overland Park, one of the largest corporate headquarters complexes in the country.
Wichita Area Builders Association president and CEO Wess Galyon confirmed in an e-mail that his organization donated to the campaign as well, at Clendenin’s request.
“He (Clendenin) said he wanted to do something to help Mayor Longwell get re-elected, and asked if WABA would be willing to make a contribution to be used to purchase some digital billboards,” Galyon said in an e-mail response to Eagle questions.
He said it was news to him that the money was used for the allegedly defamatory ad against Whipple.
“If that is true, I can assure you that WABA never intended any of its funds be used in such a manner,” he said.
WABA represents hundreds of builders, contractors and remodelers and is one of the most influential lobbying groups at the City Council and County Commission. City and county government routinely consult with WABA on zoning and building policy.
And at election time, “We interview candidates and support those we believe are best qualified,” Galyon said.
Cornejo president Pat Short did not return repeated messages left with the business.
Cornejo estimates on its website that it and other paving companies it absorbed “have built over 75 percent of the roads in the Wichita area.”
Citizens United opened the door
Sedgwick County District Attorney Marc Bennett said a 10-year-old U.S. Supreme Court decision explains why this is all playing out through a civil lawsuit and not campaign finance laws.
That decision — Citizens United v. Federal Election Commission — struck down a federal law that kept corporations and other associations from funding or producing “electioneering communication” that mention a candidate by name within 60 days of an election.
Since then, political donors have been allowed to pump unlimited cash into elections via business entities, while remaining anonymous.
Citizens United “has given entities like businesses, LLCs, et cetera, First Amendment privileges to say these sorts of things,” Bennett said.
Four years ago, the City Council removed a local prohibition on businesses giving money directly to city candidates’ campaigns.
That passed on a 4-3 vote of the council, with Clendenin and Longwell both voting for the change.
“It sounds like the City Council made things worse,” said Weiner, the NYU election expert.
He said despite Citizens United, local governments can and should make an outfit like Protect Wichita’s Girls “disclose its donors and say who the real people are who paid for that message.”
If they don’t, videos like the one targeting Whipple could become the new normal, Weiner said.
“If people don’t demand that their elected leaders take these concerns seriously, then this is the system,” he said.
Coming up in Part 3: Fallout from ad left scars across Wichita’s political landscape