Federal Election Commission

Candidate Coordination With Outside Groups Eased by Rulings

June 25, 2018 Ken Doyle

Congressional campaigns may find it easier to coordinate their messages with super political action committees and other outside groups as a result of Federal Election Commission decisions.

The commission dismissed complaints that messages posted on the campaign websites of Senate Democratic candidates Evan Bayh and Ted Strickland were echoed in television ads sponsored by the Senate Majority PAC, a Democratic super Political Action Committee supporting the candidates.

In another dismissed case, video footage shot by a company linked to House candidate Sean Eldridge was used in a campaign ad for the New York Democrat.

The cases could provide a roadmap to allow candidates to steer allied groups towards preferred messaging through selective public statements about their campaign needs.

Bayh lost his Senate race in Indiana in 2016 to Sen. Todd Young (R-Ind.), while Strickland lost the Senate race that year in Ohio to Sen. Rob Portman (R-Ohio).

Eldridge lost a House race in New York in 2014 to former Rep. Chris Gibson (R-N.Y.).

The complaints were dismissed on a deadocked vote among the four FEC commissioners. Though all the candidates involved in the latest coordination enforcement cases are Democrats, the commission’s two Democrats voted to pursue enforcement action. Meanwhile, the two Republican commissioners voted to drop the matter.

Loophole Exploited

The commission’s complex rules barring coordination between candidates and outside groups “already had loopholes and this appears to be yet another one that’s being exploited,” said Ellen Weintraub, one of the Democratic commissioners who voted to pursue enforcement action.

Outside groups are legally required to be independent but can raise and spend unlimited amounts to influence campaigns. Congressional candidates can raise only limited contributions.

Outside spending in the 2018 midterm elections is running about 35 percent above the pace in the last midterm elections in 2014, according to FEC reports compiled by the nonprofit Center for Responsive Politics. Outside groups already have spent nearly $160 million and are on track to spend nearly $750 million by the November elections, CRP figures indicate. That compares to about $550 million in outside money in the 2014 midterms.

A staff report from the FEC general counsel’s office recommended that the cases involving Bayh and Strickland be dismissed. The counsel’s report cited commission rules defining illegal coordination, which allow gathering information from a public source provided there are no private communications between a candidate and outside group.

A counsel’s report in Eldridge’s case recommended pursuing further enforcement action following a staff investigation of the matter.

Obscure Contributions

In separate actions, the FEC made public dismissals of a half-dozen enforcement cases involving contributions to super PACs by obscure limited liability companies. The contributions went to a super PAC supporting Republican presidential contender Jeb Bush in 2016 and Democratic-leaning super PAC called America Leads.

The actions followed a recent federal district court ruling upholding the commission’s dismissal —on deadlocked votes—of enforcement cases involving limited liability companies’ contributions to other super PACs in 2012. Democratic commissioners said longstanding rules barring “straw donations” applied to campaign money funneled through a company, but the Republicans said the rules were unclear.

Weintraub said in a statement that the limited liability company enforcement matters all involved wealthy contributors funneling money through corporations. The moves defeated “the public’s interest in knowing who seeks to influence our elections,” she said. “For some of these transactions, we still do not know the true source of the money. We may never know.”

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bgov.com

To contact the editors responsible for this story: Paul Hendrie at phendrie@bgov.com; Bennett Roth at broth@bgov.com

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