Moderate Party faces uphill battle in NJ, while a moderate PAC's donations raise eyebrows

A newly formed Moderate Party in New Jerseyis fighting in court to place candidates — including New JerseyDemocratic Rep. Tom Malinowski — on the ballot twice, once under the Democratic Party and a second time under the nascent Moderate label, a practice known as fusion voting that is banned in New Jersey and most other states. The matter won’t be decided in time to affect the Nov. 8 election, where Malinowski faces a tough challenge from former state Sen. Tom Kean Jr. 

Malinowski touted his nomination by the Moderate Party, an "alliance between Democrats of all stripes, independents and moderate Republicans hoping to win an election while pursuing a reform to the election laws that could empower swing voters to save our democracy from toxic polarization,” as he put it in a New York Times opinion piece.

In October, a new super PAC with a similar name, the Moderate Party Independent Fund, poured $152,000 into online ads and mailers backing Malinowski and attacking Kean in their tight race for the 7th Congressional District, a region that became more Republican after redistricting. The district includes Hunterdon County and parts of Essex, Morris, Somerset, Union and Warren counties.

The new PAC was funded entirely with one check: $500,000 from the House Majority PAC, a group for which House Speaker Nancy Pelosi raised money when it was founded more than a decade ago, staffed with former employees of the Democratic Congressional Campaign Committee, the “official campaign arm” of Democrats. 

The House Majority PAC spends hundreds of millions of dollars each year to elect Democrats into office, funded with infusions of cash from former New York City Mayor Michael Bloomberg, Newsweb Corp. Chairman Fred Eychaner, Renaissance Technologies Founder James Simons and various unions, as well as undisclosed cash from a dark money group called House Majority Forward. The group spent another $762,000 directly on messaging that attacked Kean, according to OpenSecrets. 

Republicans blasted the Moderate Party Independent Fund's branding as misleading, given the disclosure that all its funding came from the House Majority PAC: How can a group purport to be moderate when it’s funded entirely by the super PAC arm of the Democratic establishment?

“You created an entirely false party with an entirely false premise through less than transparent means that is 100% funded by Nancy Pelosi’s super PAC from beginning to end,” Kean told NorthJersey.com. “This is the type of activity that has people lose faith in democracy.” 

Tom Szymanski, executive director of the New Jersey GOP, echoed that. “This confirms beyond a shadow of a doubt everything the NJGOP has been saying about the so-called Moderate Party from the beginning," he said. "It is an illegal, Democrat-funded scam designed to deceive voters. No amount of dirty tricks or dirty money from Nancy Pelosi will save Democrats from the fate that awaits them at the polls Nov. 8.”

Republicans also raise questions about potential campaign violations.

Super PACs can raise and spend unlimited amounts of money from almost any source, while political parties have contribution limits and rules about whose checks they can take. Because super PACs have more freedom, they must be independent and not share messaging and resources or “coordinate” with any candidate or party. 

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Republicans point to overlap between the two groups. Two founding members of the Moderate Party are in the super PAC’s ads, according to Google’s ad transparency site: Rick Wolfe, the former Republican mayor of East Amwell Township, and Michelle Garay, the former Republican mayor of Alexandria.

Wolfe said he wasn’t aware the super PAC existed until he read a news article last week. 

“I was asked by an organization that is supporting moderate candidates to do a video supporting Tom Malinowski,” Wolfe said. “It wasn’t this PAC. I’d have to go back through the file and find the name of the organization. How it got from that organization to the PAC, I don’t know.”

The super PAC’s treasurer, Jennifer May, said the group “has no direction or control of the actions of the NJ Moderate Party, or vice versa.”

“We ask reporters and commentators to understand the distinctions and not treat these two separate entities as if they were one and the same," said May, the founder and CEO of political compliance firmNext Level Partners and a former New Jersey fundraiser. “While the major parties may be disdainful of efforts to re-legalize fusion in New Jersey, the citizenry needs and expects fairness and accuracy from the press.” 

But even if the groups had overlap, it may not be a problem, said Saurav Ghosh, director of federal campaign finance reform at the Washington, D.C.-based Campaign Legal Center. 

The Moderate Party will not be on the Nov. 8 ballot, and in the group’s paperwork, it did not designate itself as a party. The group checked the boxes for “ideological group” and “continuing political committee” in two forms turned in to New Jersey’s elections agency, the Election Law Enforcement Commission, or ELEC. 

“If a group of people wanted to try and form a party, didn't succeed in getting on the ballot and checking all the boxes in time, my interpretation is there is nothing that precludes that same group of people from saying, ‘OK, we couldn't get on the ballot, let’s instead form a super PAC and make independent expenditures in support of the candidate that we think is the best choice for our district,” Ghosh said. “I don’t see anything barring them.”

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To be able to register as a political party, a group would need to petition to the New Jersey secretary of stateto get its candidates on the ballot, and secure at least 10% of all votes cast in the Assembly elections, said Flavio Komuves, an attorney with Weissman & Mintz representing the Moderate Party. “It shows how New Jersey is one of the most hostile states to the formation of third political parties,” he said.

A continuing political committee has lower donation limits than parties, and residents can register to vote under a party, not a continuing political committee. 

Overlapping staff or volunteers on a political party and a super PAC often isn’t enough to prove coordination, said Stuart McPhail, senior litigation counsel with Citizens for Responsibility and Ethics in Washington.

“Coordination is one of those things that is hard to prove and easy to evade, especially with this current Federal Election Commission,” McPhail said. 

Fusion voting court challenge

New Jersey Secretary of State Tahesha Way twice rejected the Moderate Party’s petitions to nominate Malinowski because the legislator had accepted the Democratic Party nomination. The group asked a state appellate court to allow his name to appear under two party lines and combine the vote totals, a practice called fusion voting that was outlawed in New Jersey in the 1920s but is still legal in eight states. The party is arguing that anti-fusion laws violate the state constitution’s guarantees of the right to assemble, free speech and association, equal protection and other provisions. 

“If you’re a Republican against MAGA [Make America Great Again] like me, fusion voting would give New Jerseyans a fourth choice,” said Wolfe, a committee member of East Amwell Township and a founder of the Moderate Party. “It may be unpalatable to vote for Tom Malinowski under the Democratic Party label, vote for Kean who has Donald Trump’s back no matter what, or not vote. Under fusion voting, we’re supporting a moderate candidate but we’re not supporting the Democratic Party. They can vote for the candidate under the Moderate Party.”

Election officials began sending out mail-in ballots on Sept. 24. Although the court first placed the fusion voting case on an accelerated schedule, lawyers for the state Attorney General’s Office and the Moderate Party asked the court to take the case off the expedited track. 

“Acceleration risks harming the public interest because a decision … before the November 2022 General Election would provide one candidate an opportunity that now has been foreclosed to all others, would necessitate a rush to educate the public about new ballot design and voting rules, and could risk widespread voter disenfranchisement in Congressional District 7 if these rules are not followed in accordance with other election laws,” the Attorney General’s Office wrote in an Aug. 15 letter to the court. 

The court granted the motion on Sept. 15 and set due dates in November and December for both sides to turn in briefs. The new goal for the Moderate Party is to make its way onto New Jersey ballots in 2023.