Ad Audit
7:39 am
Sun April 27, 2014

Ad Audit: Attack Ad Draws Charges Of Improper Coordination By Shaheen Campaign

Update: The New Hampshire Republican State Committee has submitted a complaint to the Federal Election Commission, alleging the Shaheen campaign "engaged in coordinated political advocacy communications that amount to illegal contributions." 

Republicans are claiming the campaign of New Hampshire Sen. Jeanne Shaheen broke federal election law by helping to craft a television ad paid for by a Democratic super PAC.

At issue is a 30-second spot from the Senate Majority PAC, run by former staffers of Senate Majority leader Harry Reid. The ad accuses Scott Brown, who Democrats see as Shaheen's strongest GOP opponent, of protecting the interests of oil companies in exchange for campaign contributions when he was a Senator in Massachusetts.

Republicans say the ad, which began airing Friday on WMUR-TV, follows a script posted on the Shaheen campaign website. That would be a violation of a Federal Election Commission rule that forbids PACs from bankrolling ads in coordination with a candidate.

Jennifer Horn, chair of the New Hampshire Republican State Committee, said the new ad raises "troubling ethical questions" about Shaheen's campaign.

"It is obvious that after railing against outside money, Senator Shaheen is trying to undermine federal election law and coordinate with Harry Reid's dishonest outside money group," Horn said in a statement.

Outside groups - political committees that operate independent of campaigns - have been prohibited from coordinating their spending with candidates since 1976, when the Supreme Court noted, in Buckley v. Valeo, that it might offer independent spenders a way around limits on direct contributions.

But the high court's 2010 Citizens United ruling that allows corporations, unions and individuals to give unlimited amounts to outside groups led to the emergence of super PACs that are now pressing the boundaries of the coordination rule.

"It's really increasing in the last election cycle," said Larry Noble of the Campaign Legal Center. "People think they've found a new loophole."

Even before the super PAC era, violations of the rule on coordination were difficult to prove and rarely led to sanctions. Between 1999 and 2011, the FEC had investigated just three cases, two of which resulted in fines totaling $26,000, according to the Center for Public Integrity.

Covington & Burling, a legal firm that specializes in FEC-related litigation, says coordination is an increasingly "murky" area of campaign finance law, even as the number of complaints has grown.

The firm's 2013 review of FEC enforcement found that the six-person commission received more than a half dozen coordination complaints, but found no violations. In most cases, the commission - made up of three Republicans and three Democrats - was deadlocked 3-3 on whether the complaint even merited investigation.

Noble said there have been numerous cases lately involving committees that use video - or B-roll - posted by candidates on YouTube or campaign websites in advertisements.

In March, for example, a two-minute, twenty-two second video montage of Senate Minority Leader Mitch McConnell (R-KY) was posted to McConnell's Youtube page. Less than two weeks later, some of the footage appeared in a $1.8 million ad campaign by a super PAC, the Kentucky Opportunity Coalition.

Noble said the Campaign Legal Center sent a letter to the McConnell campaign, reminding them that the rule on coordination prohibits “republication, in whole or in part” of such material by outside groups.

The problem with holding campaigns and committees responsible for such behavior, Noble says, is that the commission can't seem to agree on how much campaign content that ends up in a PAC ad is too much.

"It is true that somebody wanting to spend money independent of a campaign can paraphrase the campaign, knows generally what the campaign stands for, they can make up their own ads, and that's an independent expenditure," Noble said. "What they can't do - what the campaigns would like them to do - is adhere exactly to the campaign's line."

Republicans began accusing Shaheen of doing just that more than a day before the Senate Majority PAC ad first aired, claiming that her campaign had planted the script on her campaign website, under the heading "Important Message for New Hampshire."

The 92-word message - which takes just under 30 seconds to read - repeats a line of attack Shaheen has been using against Brown for months. It attempts to tie the former Massachusetts senator to the Koch brothers, the billionaire conservatives who founded Americans for Prosperity, which has already spent more than $2 million on ads against Shaheen this year.

When Brown was the Senator from Massachusetts he gave big oil and Wall Street billions in special breaks. They gave him millions in campaign contributions.

The message was followed by links to a page of photos of Shaheen and six-and-a-half pages of research that purport to document the message’s claims.

While it doesn't repeat Shaheen's message verbatim, the ad strikes an identical theme.

“Scott Brown is carrying some big oil baggage," the narrator says. "In Massachusetts, he voted to give oil companies big tax breaks. They make record profits. He collects over $400,000 in campaign contributions."

The ad specifically references Brown’s 2011 vote on a bill that would have repealed $21 billion in tax subsidies to five oil companies. Brown was one of 45 Republicans and three Democrats who opposed the measure, arguing it would likely lead to higher gas prices.

Harrell Kirstein, communications director for the Shaheen campaign, denies the post on the website was an attempt to coordinate a message with the Senate Majority PAC. He said Brown's vote on the oil subsidy was an issue when he ran for the Massachusett's seat in 2012, in which he lost to Sen. Elizabeth Warren.

"The ad that went up this week was not identical to the information on our website," Kirstein said in an email. "The context we provide is different than the language in the Majority PAC ad."

Indeed, whether the ad, which also takes a not-so-subtle swipe at Brown’s status as a recent transplant to the Granite State, suggests coordination will likely depend on which candidate you support.

Or, Noble says, your reading of the law.

"Some commissioners will say if it's incidental or a passing reference to a phrase or if you quote a candidate, it's almost a fair usage kind of situation, that may not be republication," he says. "But there are instances where you can argue that the candidate by putting the material up there and encouraging people to use it may be involved in a coordinated expenditure."

This story was updated to include a comment from the Shaheen campaign.