Southern Progress, an organization aimed at bolstering Democrats in the South, yesterday highlighted legal questions about an advertisement from the Republican Attorney Generals Association for Leslie Rutledge, the state’s Republican nominee for AG.
The group first reported on the ad last Friday, writing, “Either RAGA and Leslie Rutledge’s campaign are flat out breaking the law or they are arrogantly flipping it the bird.”
RAGA spent more than $400,000 airing a 30-second television spot for Rutledge in Arkansas. No video is available of the ad. Here is the script, as reported by Southern Progress:
“Did you know it is over a thousand miles from Arkansas to Washington,” says Rutledge, while moving the salt shakers apart to illustrate the distance. “But Washington’s ideas are a lot further away than that. From Obamacare to the EPA’s burdensome regulations on Arkansas farmers, big government is running the country into a ditch. I am Leslie Rutledge and I have had enough. I will stand up to Obama and fight for Arkansas values. It’s about time we give them a new direction.”
The ad ends with Rutledge holding one of the salt shakers with chyron that reads: “Call Leslie Rutledge and tell her to KEEP FIGHTING OBAMACARE (479)358-7956”
The problem: RAGA is a 527 Super PAC. It is ostensibly purchasing the ad as an independent expenditure, which means it cannot coordinate with candidates or campaigns. This isn’t stock footage. Rutledge was apparently filmed for the commercial. That sounds an awful lot like coordination. And you know who else thinks the candidate coordinated with the 527 Super PAC? Leslie Rutledge!
When asked if she views the ad as coordination between her campaign and RAGA, she added, “Yes, legally.”
Rutledge’s defense to Talk Business was that the ad does not advocate voting for or against Rutledge or identify her as a candidate for AG. She’s wading deep into gray area, as the words “Attorney General” appear in the tagline and she identifies herself and lists her campaign promises. But she’s also claiming that she can coordinate with a 527 Super Pac on an independent expenditure. Basically, the Rutledge campaign is putting out an advertisement, an advertisement that the campaign helped create, featuring Leslie Rutledge articulating her platform and saying she’ll fight Obamacare, as her name and “Attorney General” flash on the screen — and arguing that it’s perfectly kosher for a Super PAC to pay for it as an “independent” expenditure.
There is no doubt that this would be flatly illegal as a matter of federal election law, but many aspects of state elections are regulated by state law. So what about state elections in Arkansas? Rutledge pointed to a a 2006 Arkansas Ethics Commission advisory opinion, which deals with what counts as “express advocacy” (Rutledge’s ad — oops, I mean RAGA’s ad — avoids the magic words, and doesn’t tell viewers to go out and vote for Rutledge). That’s a separate issue — the opinion isn’t about coordination. However, the opinion does feature this chart, which appears to be the basis for Rutledge’s contention that this coordination was legal:
This seems to be the crux of Rutledge’s argument. She is arguing there was no “express advocacy,” (no magic words!), which strains credulity and common sense but could at least plausibly hold up legally because the ad doesn’t come out directly and say “vote for Leslie Rutledge.” The very same advisory opinion notes that Arkansas law demands that independent expenditures are made “without arrangement, cooperation, or consultation between any candidate…and the person making the expenditure.” As far as I can tell, then, Rutledge is arguing that this ad is not an “independent expenditure” at all. It’s strictly educational!
I expect we’ll see a legal fight. But putting that aside, this is just an embarrassing farce. Lots of advocacy groups do wink-wink advertisements that ostensibly “educate” voters about issues, heavily implying that folks should vote for Candidate X (perhaps with a picture or stock footage). This is something altogether different. The candidate herself is in the advertisement. She directly coordinated to make the advertisement (who knows, maybe she wrote the script!). She was filmed speaking about her campaign platform and said, “I will stand up to Obama and fight for Arkansas values.” This is a campaign advertisement. Campaign finance law is full of gray-area shenanigans but this is just laughable.
Southern Progress also notes that “any organization purchasing “non-candidate issue ads” must fill out the National Association of Broadcasters (NAB) “Form PB-18 Issues, which expressly states on page 1 what constitutes programming that “communicates a political matter of national importance”:
Programming that communicates a “political matter of national importance includes (1) references to legally qualified candidates (presidential, vice presidential or congressional); (2) any election to Federal office (e.g. any references to “our next senator”, “our person in Washington”, or “the President”); and (3) a national legislative issue of public importance (e.g. Affordable Care Act, revising the IRS tax code, federal gun control or any federal legislation).
Purchasers are also told on page 1:
“This page be completed for programming that “communicates a political matter of national importance. For all other issue ads, please go to page 3.”
Purchasers are then asked:
“Does the programming (in whole or in part) communicate a “message relating to any political matter of national importance.”
RAGA checks the box “NO” then moved on to page 3 where all they had to do was list their address in Washington the names of RAGA’s executive director, treasurer and political director.
In short, however this sorts itself out legally, RAGA isn’t behaving ethically and Rutledge is seeking to push the envelope on using outside money to brazen new territory. She is arguing that if an advertisement doesn’t use the “magic words” it cannot be regulated at all, rendering ethics and campaign finance laws in Arkansas totally meaningless. For what it’s worth, in interviewing dozens of candidates for state office in Arkansas, every single one operated under the belief that directly coordinating with groups like 527s on advertisements was illegal. Rutledge is staking out new ground.
I’d link to a video of the ad, but it’s nowhere, not on her page, or RAGA’s page, or anywhere else. Here’s Southern Progress:
We are unable to locate evidence of this ad anywhere else. It is not on the RAGA website, YouTube channel or Facebook page. They’ve not Tweeted about it or issued a press release. Neither can we find this ad on Leslie Rutledge’s website, YouTube or Facebook page. Her campaign has not issued a release about it or Tweeted about. Unless one happens to see it during the barrage of other dark money ads flooding the Arkansas airwaves, it seems to not exist.
Why all the subterfuge? We knew that Rutledge has been lagging far behind Democrat Nate Steel in fundraising. As we mentioned yesterday, reports filed on September 15 with the Arkansas Secretary of State’s office showed Nate Steel with $349,432 cash-on-hand to Rutledge’s paltry $40,748.
But Rutledge seems unconcerned about her finances and stagnation in the polls. We think we have figured out just why. It appears Leslie Rutledge and Tom Cotton have something else in common aside from an inability to connect with Arkansans – a Koch addiction.
Guess who is one of the largest funders of the Republican Attorneys General? If you guessed the Koch Brothers, you get a gold star!