GOP attorney general candidate Leslie Rutledge has registered to vote, which may or may not resolve the sticky issue of her candidacy (she was supposed to be a registered voter when she filed to run). In my opinion, the bigger story is a questionably legal campaign advertisement paid for by the Republican Attorneys General Association. Rutledge, who appears in the advertisement, readily admits she coordinated with RAGA.

Today, Matt Campbell, the Blue Hog Report blogger, filed a complaint with the Arkansas Ethics Commission over the ad. Generally speaking, coordination between candidates and 527 Super PACs like RAGA is forbidden. The vagaries of state-level campaign finance law can be murky however, and Rutledge pointed to a 2006 Ethics Commission opinion, which didn’t directly comment on issues of coordination, but featured a chart that could be read to indicate that as long as advertisements don’t use the “magic words” that indicate “express advocacy,” candidates and outside groups could more or less do whatever they wanted, with no regulation at all. I looked at this in some detail last week, but the point is, however this ends up being resolved as a legal matter, Rutledge and RAGA are pushing the boundaries of campaign-finance law in Arkansas in an unsettling direction. Their position is that if they don’t literally say “vote for” or the like, they can do whatever they want. RAGA or other outside groups can pay for obvious Rutledge ads, developed and coordinated with the campaign. No limits, no reporting, no nothing.  


The 2006 opinion Rutledge cites is focused on what “express advocacy” means, not on cooperation (note: it’s obvious that Rutledge coordinated on this since there’s footage of her shot for the ad, but in any case, she admits as much) and shouldn’t be treated as a rule or statute. It’s possible for a campaign contribution not to involve express advocacy, and the RAGA ad looks an awful lot like a contribution which needs to be reported as such under state law. The RAGA guys aren’t dummies, which makes me think that it’s at least possible this was done as an explicit test of Arkansas law. If so, than long-term impacts here are potentially bigger than Rutledge’s misadventures with voter registration and job performance review.  

Blue Hog thinks Rutledge’s argument is hogwash: 


First of all, the hypothetical ads in the 2006 Ethics opinion were voiceovers that spoke about candidates in the third person and featured no direct input from the candidate that the ads tacitly supported. Here, we have an ad that Rutledge clearly participated in the creation of, since it would be literally impossible to have a recording of her reading the script for that ad unless someone gave her that script and set up cameras to record the thing.

Secondly, the ads in the 2006 Ethics opinion were specific to “Arkansas values,” and one of the things that the Ethics Commission looked at was that these ads were specifically issue-focused speech. RAGA, however, bought advertising time not to discuss a particular issue, but, by their own admission, to run an ad related to the “Arkansas Attorney General Election.”

Of course, this distinction between pro-life/values issues and the election of an AG makes total sense when you consider the groups themselves: ARTL is a 501(c)(4) social-welfare organization, and the IRS describes the activities of such an organization thusly:

The promotion of social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office. However, a section 501(c)(4) social welfare organization may engage in some political activities, so long as that is not its primary activity.

RAGA, however, is not a 501(c)(4); it is a 527 organization. A 527 is created primarily to influence the selection, nomination, election, appointment or defeat of candidates to federal, state or local public office. Importantly, a 527 is never allowed to coordinate specifically with a candidate or campaign. Meaning, of course, that there is no “yes, legally” answer that can ever be given to the question of “did you coordinate with this 527?”

We’ll see. The Rutledge dramarama continues.