The sky has fallen.
The Arkansas Ethics Commission decided 4-0 today there was no probable cause to go ahead with a complaint that $400,000 in TV ads run to help elect Leslie Rutledge attorney general amounted to illegal campaign contributions.
Matt Campbell of the Blue Hog Report filed the complaint. It argued that it was a campaign contribution to Rutledge in excess of the $2,000 limit as well as a contribution by a prohibited political action committee for her to appear in some $400,000 worth of TV advertising purchased by RAGA, a so-called 527 group that represents Republican attorney generals. The source of its funding isn’t known.
In the ad, Rutledge says:
“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”
Rutledge herself told Talk Business she saw the ad as coordinated with RAGA.
After several hours of testimony, at a hearing at which Rutledge was represented by Rex Terry and Kevin Crass, the Commission voted 4-0 to dismiss the complaint. Ethics Commission Director Graham Sloan said a formal recitation of the case will be forthcoming. But he noted that, unlike federal law, Arkansas law has no specific law prohibiting “coordination” between outside groups and candidates. Clearly, some coordination was necessary for Rutledge to appear in a scripted ad purchased by someone else.
But coordination wasn’t the issue, illegal contributions were.
Sloan said the commission had to grapple with U.S. Supreme Court decisions pertaining to independent expenditures. Ultimately, they had to consider whether the ads were for the purpose of influencing the election, or the functional equivalent of express advocacy. Sloan said the ad didn’t reference Rutledge as a candidate, didn’t talk about the race specifically and didn’t mention the word “vote” in context with her name. He conceded that a lay person, seeing the ad in the midst of the campaign season, might interpret it as a campaign ad.
No s***, Sherlock. Running against Obama was the alpha and omega of Rutledge’s campaign. If you knew anything about her at all, you knew that. And if you’re vote was going to be cast on Obama — as many races were — this ad was a powerful incentive to vote for Rutledge.
Said Rutledge’s attorney, Crass: “The primary argument is that since the ad lacked express advocacy for a candidate, it is unregulated free speech protected by the first Amendment. The ad was consistent with the EC’s advisory opinion issued in 2006. EC06-04.”
This is the end of meaningful campaign contribution transparency as we know it, particularly now that Amendment 94 has banned direct corporate contributions to candidates and particularly in races where big money will be spent. Dark money groups, chambers of commerce, rich guys like Michael Morton — whoever — can buy all the TV time they can afford and have the candidate of their choice appear in them in extremely flattering ways. Avoid magic words like “vote” and they’re good to go.
This is a sad day. The legislature should fix the law to prevent such shams — and additionally require more disclosure of financial sources by the proliferating number of independent groups influencing elections. I don’t have much hope. At a minimum direct coordination should be prohibited, as the federal law does.
The vote came from a commission evenly split on partisan lines. Those voting to dismiss the complaint were Chairman William Byrd, Robert McCormack, Sharon Trusty and Dr. Sybil Jordan Hampton. Byrd was an appointee of then-Lt. Gov. Mark Darr, a Republican. McCormack was an appointee of Democratic Gov. Mike Beebe. Sharon Trusty is a former Republican senator appointted by Republican then-Senate President Michael Lamoureux. Sybil Hampton was an appointee of Democratic Attorney General Dustin McDaniel.
The Ethics Commission has always had a broad portfolio to interpret ethics laws robustly. It has too often extended the benefit of the doubt. It has done so again today even as it now has significant control of ethics law enforcement thanks to Amendment 94. This doesn’t augur well for an independent Ethics Commission.
How hard would it be to find a way to say it’s wrong for a political candidate to appear in $400,000 worth of beneficial TV advertising during a campaign without disclosure of financiers or considering it a contribution to the candidate?
Benji Hardy explored the ins and outs of the legalities of this when it emerged.