The super PAC backing Jeff Brown’s mayoral campaign is asking a judge to toss the city ethics board’s lawsuit

The super PAC that supported Jeff Brown’s mayoral campaign is asking a judge to throw out the Philadelphia Board of Ethics’ lawsuit accusing it of illegally coordinating with Brown, arguing that Brown’s work with the group cannot be viewed as coordination because it occurred before he launched his campaign.

If the judge agrees, the case could lead to a dramatic change in Philadelphia’s political landscape by making it easier for moneyed interests to work with their preferred candidates as they plan out their campaigns.

For A Better Philadelphia is an independent expenditure committee, or super PAC, that is allowed to take in donations that are larger than the city’s limits on contributions to candidates so long as it does not coordinate with the campaigns it is promoting. It raised more than $3 million to support Brown’s chances in the May 16 Democratic primary, mostly from donors it has sought to keep anonymous.

The board has alleged that Brown was heavily involved with soliciting donations for the super PAC up until weeks before he launched his campaign in November. Brown, for instance, invited guests to a $100,000-per-person fundraising dinner that he attended, and more than $1 million of the PAC’s funds came from Brown’s Super Stores, the parent company of the chain of ShopRite stores now owned primarily by Brown’s son.

» READ MORE: Inside the Board of Ethics’ case against the super PAC supporting mayoral candidate Jeff Brown

Since at least 2018, the board has interpreted the law and its own regulations on super PAC coordination to mean that candidates cannot engage in fundraising or strategizing with outside spending groups for 12 months before an election — even if they have not yet publicly announced that they are running for office.

But in a court filing Thursday, For A Better Philadelphia argued to Common Pleas Court Judge Joshua Roberts that the ethics board has misinterpreted its own regulations on that legal question and that candidates should be allowed to coordinate with super PACs up until the day they publicly launch their campaigns.

“What they’ve alleged is a campaign violation is not a violation under their own rules,” attorney Matthew A. White, who is representing For A Better Philadelphia, said.

The case could have lasting consequences on Philly politics.

Before Brown, it was highly unusual for potential candidates for city office to personally solicit donations for independent expenditure campaigns that later back them.

The other mayoral candidates, for instance, spent much of 2022 soliciting donations for their campaigns that were limited to $3,100 from individuals and $12,600 from political groups. Brown, meanwhile, last year asked some donors to give hundreds of thousands at a time to the super PAC.

If Brown’s approach is allowed to stand, more candidates can be expected to follow his strategy in the future, potentially increasing the amount of money that flows into Philly elections.

Electoral strategy is likely to change as well. Candidates often go to great lengths to ensure they do not run afoul of the coordination rules and usually cut off communications between their campaigns and the outside spending groups backing them once the group is formed or, in the case of pre-existing organizations, once the group decides to back them.

The result is that super PACs have to guess what would be helpful for their preferred candidates without being privy to the campaigns’ plans. Allowing candidates to work hand in glove with outside spending groups up until the moment they launch their campaigns would make coordinating strategies easier and could be a game-changer for how most campaigns are organized in Philly.

Neither Brown nor his campaign is a party to the lawsuit, but they may become involved in a later phase of the litigation.

Oddly, Brown in recent weeks has refused to acknowledge that the case continues to exist. The candidate has falsely and repeatedly claimed that the case has been settled, a lie that has led to an increasingly strange series of interactions between Brown and journalists.

“The case is still out there. Why are you saying [it’s not?]” a reporter asked Brown on Thursday after a KYW candidates forum at which Brown repeated his false claim.

“No, this case is settled,” Brown said. “They’re still saying they have the option to continue other action. But the case that was in front of the judge was settled.”

Brown appears to be referring to a stipulated agreement between the ethics board and For A Better Philadelphia in which the super PAC agreed to cease spending money to influence the election while the overall case unfolds. But that agreement did not resolve the ethics board’s lawsuit claiming Brown illegally coordinated with the super PAC.

On Friday, Brown spokesperson Kyle Anderson said, “Jeff isn’t a party to this lawsuit, nor is he a lawyer, and we’ll let the lawyers parse the difference between settlement and settled.”

White, the lawyer for the super PAC, disagreed with Brown’s claim, but declined to comment on why the candidate would maintain the case was settled.

“I don’t represent Jeff Brown, so I can’t speak for him,” White said. “I’ve seen the questions posed to him. There is pending litigation that we’ve just responded to. The litigation exists. It has not gone away.”

» READ MORE: Philly mayoral candidate Jeff Brown threatened to sue the city’s Board of Ethics during a live debate

The ethics board’s regulations state that illegal coordination between a candidate and a super PAC has occurred if the candidate or campaign “has solicited funds for or directed funds to the person making the expenditure, but only if the solicitation occurred within the 12 months before the election that the expenditure seeks to influence.”

White contends that the board’s rules mean it’s impossible for someone who is planning to run for office but has not yet launched their campaign to coordinate with a super PAC in an illegal manner.

“A plain reading of these Sections shows that one does not become a candidate until they either file their nomination papers or publicly announce their candidacy,” he wrote in the most recent court filing.

Brown has admitted that he raised money for the PAC, but said he was told by his lawyers that he was allowed to do so until he launched his campaign.

» READ MORE: Five Philly mayoral candidates are in a TV ad war that’s getting nastier by the day

The board in a 2018 advisory opinion said that, when examining illegal coordination has occurred, it doesn’t matter when a candidate launches their campaign so long as the alleged coordination occurs within 12 months before the election and prior to the super PAC making expenditures to boost their campaign.

The ethics board’s case has brought Brown a series of negative headlines and, along with other missteps Brown has made on the campaign trail, appears to have taken a toll on his standing in the polls.

Brown, who is the only major candidate in the race who has never held elected office, has said without evidence that the investigation was politically motivated and designed to keep an outsider from shaking up City Hall.

The ethics board now has 20 days to respond to the super PAC’s filing. The case is unlikely to be resolved before the primary.