May 25, 2000

DA drops probe of 37th 'smear' calls

By Ernest Schreiber; Tom Murse The politicians behind the primary election smear campaign in the 37th House district can sleep easy. The Lancaster County District Attorney's office is dropping its investigation, and the man who orchestrated the last-minute attack has landed a top political job working for House Republicans. District Attorney Donald R. Totaro said today that he doubts some 2,800 negative phone calls commissioned by consultant Don Raymond could be successfully prosecuted, because the U.S. Supreme Court has struck down laws regulating anonymous political attacks. In addition, he noted, the candidate who had asked for an investigation has withdrawn that request, and no other citizens have stepped forward to push the case. Meanwhile, in a separate development, top House Republicans confirmed today that they have hired Raymond, the man behind the telephone calls, as executive director of the House Republican Campaign Committee, a campaign oversight and coordinating group. "He's a longtime, well-experienced, solid performer," said Stephen Drachler, an aide to House Majority Leader John Perzel. "He will be overseeing day-to-day operations." State Rep. John Barley of Conestoga, an influential voice in HRCC matters, said he pointed out Raymond's mistake to others but did not see it as disqualifying Raymond from the job. "I continue to feel that this was a regrettable mistake, something that shouldn't have been done," Barley said. But, he said, Raymond took responsibility for his actions and acknowledged he was wrong. "After you admit to a mistake, do you punish the man for the rest of his life, or do allow him to make amends and move on?" Barley asked. In the smear campaign, launched on the eve of the election, anonymous phone calls accused candidate Tom Creighton of wrongdoing as a township supervisor and suggested, indirectly, that fellow candidate Marc Lemon was behind the calls. The recorded messages did not include a "tag line" identifying who really paid for the calls. On Election Day, Lemon blasted the smear and charged that the absence of the tag line violated state election law. Totaro said state election law actually requires such identification only on broadcast, newspaper, magazine, outdoor or direct mail advertisements.

"Telephone calls are not specifically mentioned," the district attorney said. While Totaro believes lawmakers intended to prohibit anonymous political phone calls, the action of the U.S. Supreme Court makes the state law largely invalid, he said. In a 1995 decision involving anonymous political attacks in Ohio, he said, the court ruled that "the value of free speech" outweighs "the danger of its misuse," and struck down any limits on political speech, no matter how "unpalatable." In the immediate aftermath of the primary, Lemon had claimed that fellow candidate Kevin Harley ultimately was to blame for the smear. Raymond, who ordered the calls, was Harley's campaign consultant. In his broadest remarks to date, Harley today repeated what he has said before -- that he knew nothing of the calls. But, going a step further, he apologized for the calls and took responsibility for them anyway. "While I did not authorize or have any knowledge of the phone calls, as a former candidate I accept responsibility for the actions of my campaign consultant or any one else working on my campaign," Harley said, reading from a prepared statement. "I apologize to the voters, Tom Creighton and Marc Lemon for the negative phone calls made by my campaign consultant," Harley said. "I believe that the phone calls ordered by my campaign consultant were misguided and an insult to the voters, Tom Creighton and Marc Lemon. "I wish Tom Creighton the best in the fall campaign and will work hard toward his election, and I know he will do an outstanding job representing the citizens of the 37th district." Harley said he has tried to find out who on his election campaign ordered the phone calls. "The people involved have all denied to me that they authorized the calls," Harley said. He said he will refuse to pay Raymond for the calls. "Raymond's going to have to eat it," Harley said. Raymond did not return a telephone call this morning. Totaro said he weighed Lemon's satisfaction with Raymond's prior apologies in making his decision. Totaro said he is not "prepared to spend the limited resources of this office to institute a criminal action in a case where the initial complainant who was affected by the phone calls has withdrawn the complaint and does not wish to proceed." If any citizens feel strongly about continuing the case, he said, the proper forum is Lancaster County Courts. State election law allows any five electors to ask an auditor to review the records. The court would review the audit and decide whether the candidate has violated the election code. To date, Totaro noted, no one has petitioned the court about the negative telephone calls. Lemon said today that he will not pursue the matter further. "I feel strongly about living up to my word that I would accept an apology," Lemon said today. "Had I not made that promise I would certainly feel more comfortable going after all of the people we know are behind this, despite an apology."

The candidate said he respects Totaro's decision, even though it does not directly hold anyone accountable for the smear campaign. "Although I would like to be assured that this type of activity will never happen again, I think that the voters can clearly see who are the individuals behind this ... and put it in the backs of their minds and remember it in the next election," he said.