I spoke this morning with a very helpful lawyer from OCPF regarding the Killer Coke situation. He directed me to a recent (about a month ago) “Interpretive Bulletin” (pdf [note: link has been fixed - sorry]) that lays out in some detail the issues relating to the campaign finance question I raised at the bottom of yesterday’s post.
As is usually the case in situations like this, there’s no crystal-clear answer. But it seems to me that, if Killer Coke goes ahead with its announced plan to distribute these anti-Patrick fliers, it will be skating awfully close to, and perhaps crossing, the line separating “issue advocacy” (not regulated) from “express advocacy” (heavily regulated). More on the difference between the two, and the consequences of failing to comply with applicable regulations, after the jump.
Is the flier “express advocacy”?
The basic distinction between “express advocacy” and “issue advocacy” is that “express advocacy” urges the election or defeat of a particular candidate, while “issue advocacy” doesn’t. This is how OCPF defines the difference:
[F]or a communication to contain “express advocacy” and be regulated as an expenditure, it must contain one of the following: (1) explicit words that urge the nomination, election or defeat of the candidate, such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Senate,” “vote against,” “defeat,” or “reject” or synonymous words, such as “unseat,” (2) words that urge other electoral action, such as words asking viewers or readers to campaign for or contribute to, the candidate, (3) words, symbols or graphic representations that relate to the candidate’s nomination or election (e.g., “vote,” “election,” or “candidate”) if in the context of the entire communication, the words (as in the Christian Coalition case) exhort the viewer/reader/listener to take action to support the nomination, election or defeat of the candidate, or (4) a symbol or other graphic representation explicitly supporting or opposing the candidate if combined with a word or symbol relating to the nomination or election of the candidate, e.g., the candidate’s name with an “x” darwn through it combined with a reference to the date of the election, or a copy of the ballot with only one candidate’s name checked.
It seems to me that the flier comes closest to clause (3) – words that “relate to” the candidate’s nomination, if in context those words “exhort the reader” to take electoral action. Look again at the flier, this time with the key portions highlighted. The highlighted portions read:
Is Deval Patrick suited to be Governor?
Before voting on Sept. 19, ask yourself ….
If you care about working families and you’re offended by corporate misconduct and politics as usual, remember:
A Vote for Deval Devalues Your Priorities!
Without question, the flier contains words that “relate” to Patrick’s nomination: there are specific references to the office he is seeking, to the primary date (Sept. 19), to the act of “voting” on that date, and to the reader’s “vote.” And it does seem fair to me to say that the “context of the entire communication” is designed to “exhort” the reader to “take action” to defeat Patrick’s nomination – namely, to vote against him. Why else would the flier declare that “a vote for Deval devalues your priorities”? It seems nearly indistinguishable to me from the situation in the Christian Coalition case (52 F.Supp.2d 45 (D.D.C. 1999), for those with Westlaw/Lexis access), to which OCPF specifically refers. In that case, as set forth in the OCPF memo, a Christian Coalition mailing was found to constitute express advocacy because it said that “The Primary Elections are here,” referred to “your trip to the voting booth,” and also noted that “[t]he only incumbent Congressman who has a Primary election is Congressman Newt Gingrich – a Christian Coalition 100 percenter.” The court went on to say:
The unmistakable meaning of the letter is that because Newt Gingrich has voted as the Coalition would have wanted him to on every vote the Coalition considered significant, the readers should vote for him in the primary election.
OCPF then explains:
In these circumstances, the court indicated that, given the words used in a letter distributed by the Coalition and the timing of the communication, the letter exhorted the reader to take electoral action to support the election or defeat of a clearly identified candidate, and therefore it should be considered express advocacy.
In terms of whether it expressly advocates the election or defeat of a specific candidate, I have a hard time seeing how the Killer Coke flier is much different from the Christian Coalition’s letter – if anything, the flier seems to advocate “electoral action” more clearly.
If the flier is “express advocacy,” what does that mean?
If the flier is “express advocacy,” it means a couple of things. First, corporations are not permitted to engage in express advocacy. Therefore, if it is really CCI that is spending whatever money it takes to print up the alleged 30,000 fliers and distribute them, that would be a problem (“Any corporation violating any provision of this section shall be punished by a fine of not more than fifty thousand dollars and any officer, director or agent of the corporation violating any provision thereof or authorizing such violation of any provision thereof, or any person who violates or in any way knowingly aids or abets the violation thereof, shall be punished by a fine of not more than ten thousand dollars or by imprisonment for not more than one year, or both.”).
Second, even if CCI itself or some other corporation isn’t the source of the funds, any money over $100 spent on “express advocacy” must be reported to OCPF within 7 days of the money being spent. Perhaps Killer Coke will comply with that requirement; we’ll know soon enough.
Third, if Killer Coke is raising money for the purpose of “express advocacy” – i.e., to pursue its campaign to defeat Patrick – it must register as a political committee with OCPF, and must follow all the usual rules (contribution limits, information collection, reporting, etc.) applicable to political committees. It’s unclear from Killer Coke’s website whether it intends to raise money for the specific purpose of defeating Patrick’s nomination. But the placement of a “Contributions” link to Killer Coke’s Paypal account on the main page of its “Deval Patrick Exposed” site seems to me to allow the inference that it does intend to raise money for that specific purpose as well as for its general anti-Coke campaign. Killer Coke has not yet registered as a political committee, though perhaps it intends to do so.