FATEFUL DAY: Mike Huckabee with Kim Davis on the day his campaign made the expensive decision to play "Eye of the Tiger" at a campaign rally.
The Federal Election Commission
this week released a draft opinion that says Mike Huckabee
should not be able to use a legal defense fund to pay a legal settlement he reached for unauthorized use of the song "Eye of the Tiger"
at a campaign rally.
The Arkansas Times reported last month
that Huckabee had reached a settlement — terms undisclosed — in a federal court in Illinois in the lawsuit by Frank Sullivan III,
co-author of the song by Survivor
that rose to fame in "Rocky III."
Huckabee played the song at a Kentucky campaign rally Sept. 8 at which he appeared with Kim Davis,
the county clerk who refused to issue marriage licenses to same-sex couples.
Since the settlement, Huckabee's Washington law firm has been seeking FEC approval to use a legal defense fund to pay for his attorney fees and a portion of the settlement, which Huckabee has personally guaranteed.
The draft opinion, which will be up for final approval June 30, indicates the FEC isn't inclined to go along.
No, the Fund may not be used as described in the request to pay the Committee’s legal fees or settlement obligation arising out of the copyright infringement lawsuit.
The Act provides that “a candidate . . . , [or] agent of a candidate . . . shall not . . . receive, direct, transfer, or spend . . . funds in connection with an election for Federal office . . . unless the unds are subject to the limitations, prohibitions, and reporting requirements of this Act.”
Here, the Fund proposes to pay a settlement obligation that Governor Huckabee has personally guaranteed. Paying Governor Huckabee’s debt on his behalf is functionally and legally indistinguishable from making a disbursement to Governor Huckabee himself.
The draft opinion added, because the litigation is connected to the election campaign, money may be used for legal costs, but the legal defense fund "may not receive or spend funds that do not comply with the source prohibitions, amount limitations, and reporting requirements of the Act." This means, it seems, that contributions to the fund would be limited by the usual campaign contribution limits. A pre-existing maximum giver couldn't contribute more for the legal fees, for example.
The FEC will accept comments on the draft opinion through June 29 and Huckabee's representative can appear before the Commission to present additional information or contest the opinion, signed by FEC Chair Matthew Petersen.
UPDATE: According to an FEC campaign filing quoted in the Arkansas Democrat-Gazette, Huckabee agreed to pay $12,500 to settle the copyright lawsuit. His campaign also paid at least $3,000 in fees to the law firm that defended him in the copyright case. He's paid more than $50,000 to the Washington law firm that is representing him before the FEC, but it's not clear how much of that billing, if any, is for the FEC work and how much for other legal services.