Earlier this week, Blue Hog Report blogger Matt Campbell filed a complaint with the Arkansas Ethics Commission over the “saltshaker” ad supporting Leslie Rutledge, the Republican candidate for Attorney General. The ad in question features video of Rutledge speaking to the camera and was produced and paid for by a supposedly independent 527 organization*, the Republican Attorney Generals Association (RAGA). Campbell says this sort of coordination between a candidate and an outside money organization is prohibited under law.
Rutledge’s flawed voter registration has attracted a lot of attention recently — and rightfully so, if for no other reason than the fact that an AG candidate who supports stringent voter ID laws should know her registration requirements inside and out — but as Dave Ramsey wrote on Monday, the ad bought by RAGA is the more substantial and troubling matter.
I’m going to dive fairly deeply into the details, because the implications go far beyond this one ad. The Rutledge/RAGA spot shines a spotlight on the contorted, contradictory mess of laws that govern the evolving landscape of campaign finance, in which outside groups such as 527s*, Super PACs* and 501(c)4 nonprofits play an increasingly important role (an example of the latter type of group active in Arkansas is Americans for Prosperity, the Koch-funded organization).
Federal election rules governing outside groups forbid them to work in concert with the actual campaigns of candidates running for office. That’s the entire point of outside groups: They’re a means of getting around limits on campaign donations, because the advertisements they buy are created and purchased without coordinating with the candidate. There’s a lot of gray in what counts for “coordination” — for example, a candidate might place unflattering stock footage of an opponent in a prominent place online, just in case some friendly outside group should amble along and happen to decide to make a friendly commercial. What a happy accident. It’s a relationship akin to courtly love — candidates and outside groups may sing sweet songs to one another from a swooning distance, but never allow themselves to touch. So long as there’s no coordination, chastity is maintained.
Campbell and the Southern Progress Fund (which is itself a 527*, on the Dem side of the equation) have focused on the fact that the “saltshaker” commercial is very obviously coordinated with RAGA. Leslie Rutledge is right there IN the ad, after all. And Rutledge herself said the ad is coordinated.
So is she openly flaunting law?
I’m not so sure, due to the word “federal.” We’ve become used to the dance of outside spending in federal elections — the slew of ads from American Crossroads and Senate Majority PAC in the Cotton/Pryor race, for example — but the rules of the FEC don’t have clear jurisdiction over the financing of state-level races such as the Attorney General. The rules of the Ethics Commission do. For reasons I’ll outline after the jump, the Rutledge/RAGA ad may skirt state law governing coordination between a campaign and an outside group. In fact, this kind of ad might not be regulated as an independent expenditure at all. This is what Rutledge thinks. She acknowledged that the ad is indeed coordinated, but cited an advisory opinion issued by the Ethics Commission back in 2006 that seems to indicate (in passing) that such coordination is OK in the eyes of the state.
Yet this is almost a moot point, because it seems very likely that the Rutledge/RAGA ad does run afoul of Arkansas campaign finance law in another way: by constituting a direct donation to the Leslie Rutledge campaign. It seems to me that in ducking through a loophole, Rutledge has fallen into a clear violation of campaign contribution limits and disclosure requirements. Last week, before Campbell’s complaint was filed, I spoke with Ethics Commission Director Graham Sloan about some of the issues raised by the Rutledge/RAGA ad.
Sloan began by reading the definition of what constitutes an independent expenditure, which is found in the Ethics Commission’s rules:
..any expenditure which is not a contribution and expressly advocates the election or defeat of a clearly identified candidate for office; is made without arrangement, cooperation, or consultation between any candidate or any authorized committee or agent of the candidate and the person making the expenditure or any authorized agent of that person; and is not made in concert with or at the request or suggestion of any candidate or any authorized committee or agent of the candidate.
“Really there’s two parts to that,” said Sloan. “It expressly advocates, and it’s made without cooperation and consultation. If there wasn’t express advocacy, or if there was cooperation and consultation, then it wouldn’t be an independent expenditure.”
Let’s back up just a little. “Express advocacy” is a term narrowly defined by the U.S. Supreme Court to mean communication that contains a few selected phrases: “vote for,” “elect,” “support”, “defeat” and so on. If an ad doesn’t have one of the “eight magic words” indicating express advocacy, said the Court in its landmark 1976 Buckley v. Valeo decision, it’s exempt from campaign finance law.
Like so many bold, black legal lines drawn for the sake of clarity, the “magic words” test has yielded a lot of absurdities in the real world. That’s why we see ads urging us to call Mark Pryor and “thank him for protecting jobs” or “tell him to stop supporting Obamacare” or whatever the case may be. Such commercials are called “issue advocacy” or “issue ads” or sometimes “electioneering.” But they aren’t express advocacy, see, and therefore not really under the purview of campaign finance regulation, so outside groups can spend as much as they want on them.
In Arkansas, only express advocacy is considered to be an independent expenditure. Issue ads are not independent expenditures at all in the eyes of the statutes guiding the Election Commission. They’re…well, nothing. An issue ad is no different than a commercial selling paper towels or a public service announcement against drunk driving. “Issue speech isn’t regulated,” Sloan said.
The Rutledge campaign is arguing (I believe) that the Rutledge/RAGA ad contains no express advocacy and therefore is not an independent expenditure. Thus, coordination between Rutledge and the group paying for the commercial is not forbidden. QED.
“That would still leave the question of whether it’s a contribution,” said Sloan. “A contribution is defined as anything of value given to a candidate for purposes of influencing the nomination or election of the candidate. … While the definition of independent expenditure is worded in terms of express advocacy, ‘contribution’ is defined in terms of influence. … You can buy hot dog buns, and those are legitimate campaign expenditures. You can buy pizza and drinks for campaign workers for stuffing envelopes. If you start arguing that it has to be express advocacy for it to be a campaign contribution, well, the hot dog buns would have to expressly advocate for the candidate.”
Clearly, then, the express advocacy test doesn’t apply to direct contributions to a campaign. In that case, what if someone purchases a TV spot for a candidate in which she discusses why she’d be a good Attorney General? Is that something “of value given to a candidate for purpose of influencing the nomination or election of the candidate”? Matt Campbell has assembled public broadcast records showing RAGA spent something like $300,000 for this ad buy.
It seems to me that the ad in question is a contribution from RAGA to Rutledge’s campaign — a donation which she did not register as such on her disclosure forms, and which exceeds Arkansas’s $2,000 limit on donations to candidates. (This is my conclusion, not Sloan’s. He noted that he was commenting only on general law. As for this specific case, Sloan said, “I haven’t even seen the ad, and even if I had it’s not my job to pass a decision on the facts.”)
Here’s the thing. The reason why we even have these weird, mushy categories of “express advocacy” and “issue advocacy” in the first place is that advertisements are not like other things of value given to a campaign — hot dog buns, say, or money. They’re different because they involve the intersection of free speech and politicking. It’s delicate terrain, since speech is protected by the First Amendment. It’s easy to roll one’s eyes at the “magic words” test, and it’s virtually requisite for a liberal-leaning writer like myself to talk about the evils done by Citizens United, the 2010 Supreme Court decision that allowed more money to flow into Super PACs, but there is indeed a logic behind the Court’s hesitancy to heavily regulate issue ads purchased by outside groups. Issue ads are, after all, uncoordinated with candidates by definition, and therefore are, in a sense, the voices of citizens speaking their minds.
It’s genuinely hard to protect the right to free speech while also preventing money from corrupting elections. It’s a legitimately thorny balancing act. But it’s quite straightforward to regulate a donation of something of value made to a candidate for the purpose of influencing an election.
Put another way, the “no coordination” rule at the federal level isn’t just a restriction on outside groups. As I said earlier, it’s what engenders those groups’ existence in the first place. It’s what allows them to claim they are simply citizens talking about their opinions on the airwaves. Being shielded from contact with a candidate gives an outside group the ability to claim its ad buys aren’t campaign contributions. Once an outside group openly coordinates with a candidate on airing an ad, well, it is giving something of value to the campaign. And that’s what we call a contribution.
Finally, what about that 2006 Ethics Commission opinion? I asked Sloan about whether Rutledge was correct in interpreting it to mean a candidate can coordinate with an outside group on issue ads as long as there is no express advocacy. Sloan noted that the opinion in question mostly concerns the express advocacy question, not the coordination question and that it concerns a very specific set of radio ads that ran eight years ago. (Matt Campbell notes that those ads were also purchased by a 501(c)4, not a 527 organization.
“I’ll refrain from commenting on whether somebody’s interpretation of that is reasonable or not reasonable. Somebody asked a question in 2006 and this was binding legal advice, for that context. But basically that opinion was specifically about that case….The advisory opinion process is that somebody with a question can ask one and we’ll answer it and it’s binding legal advice to the person who asked it. But it’s not a rule, or a statute.”
*At first, I sloppily identified RAGA as being a “527 Super PAC” and Southern Progress Fund as being a PAC. Not quite. Both organizations are 527 committees. RAGA has an associated Super PAC called RAGA Action Fund, and Southern Progress Fund has a nonprofit arm called the Southern Progress Action Fund. It’s common for a 527 to also have an associated PAC or Super PAC or 501(c) nonprofit. These different types of organizations have different disclosure, reporting and tax requirements.