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.
Whether you are a Deval supporter, or not, it is time that these negative ads stop. These things ruin people’s lives – not just political leaders, but their wives, children and friends too.
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A case can clearly be made that these flyers constitute express advocacy. If these flyers, or any other material with the same information should surface prior to the Primary, please report it.
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If by any chance, illegal campaigning does influence this election, there are many DP supporters out there who will definitively demand legal action against anyone even remotely involved in voter fraud. Collect that evidence.
Let us not be distracted by the legality of the Killer Coke efforts. As a Massachusetts citizen and a true Democrat I want to know the truth about Deval Patrick. As a Democrat, does Deval really care about Democratic ideals and getting the job done, leading with pragmatism? If so, does his life to date really show that? OR Is he a very intelligent, driven corporate elitist who happens to be liberal? His true coporate record will tell the truth.
The minutes from those board meetings, where Deval was earning hundreds of thousands of corporate dollars that came from the pay checks of middle/lower class America, will tell the truth. Was he standing up for true Democratic ideals in the face of big business or was HE big business? So far all we have are some very large pay stubs, a mansion on a 100 acre plot of land, and a bunch of blabber about “hope”.
I want real facts about what exactly Deval has done with his time on earth that should move me to want him as my Governor and if any of you know what is good for you, you should want the same. Real facts from multiple, at least quasi-objective sources.
In conclusion, as far as my priority list goes as a Massachusetts Democrat, concern about OCPF and Ray Rogers is way down the list. I want facts about my candidates.
While this blog should always welcome new people, I note that a couple of the Deval whackers (Eddie Munster, True Dem) have joined today. I give more credence to the folks like MaverickDem who have hung in there, taken their share of abuse, held to their principles and added to the debate. For the last few weeks, put on your helmets folks, the flak is falling fast and furious.
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Hmmmmm….wasn’t that a TV show of the 70s? Oh, that was “Here Come the Brides!”
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Never mind.
They just have to follow the Rules of the Road, and everyone is encouraged to use their real names (talk about swimming upstream with that message!)
Indeed, let’s not bother with legality. Hell, let’s just throw the rulebook out the window. Free-for-all foodfight!
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But you know, even if you do throw the rules out the window, you won’t get what you’re looking for. Patrick and Coke (and United and Ameriquest, for that matter) are mutually bound by very strongly binding NDAs that Will. Not. Be. Broken.
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Ray Rogers says Deval is evil for having worked for Coke. Deval says he was trying to change Coke’s corporate policies and had to leave as a result of boardroom political conflict.
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At some point, you have to decide who you’ll trust, because you will never never never get the facts in this matter.
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Me, I trust Deval because of his work for the Clinton administration. Thus I tend to believe his statements on his other career moves and positions. I also have to believe that if he were lying, we’d hear about it from anonymous sources. That none have surfaced is in Deval’s favor as well.
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It’s obvious where you stand. The question is whether you will do anything productive, or whether you will continue to spread invective, FUD and useless demands for facts.
“earning corporate dollars that came from the paychecks of poor and middle class Americans…”
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Whew! That is pungent fertilizer you’re slinging there, pardner. Are you trying to convert Jurgis Rudkus?
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The only time he earned money out of people’s paychecks was when he worked for the government.
I misread the poster’s handle as TrueBlue. Apologies.
I searched in vain for a citation a friend of mine had sent me several months back that contained a section of Mass General Law (relating to elections) that detailed the requirements for disclosure on a flyer of this kind.
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Maybe some of you legal-beagle types are familiar with this, or can find it.
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The thing I took away from my reading of that section is that if a flyer contains “express advocacy” as David defines it above, it must also have the name and residential address of a “responsible” person, or if it is printed by a campaign committee, two of the officers of that committee.
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My non-lawyerly reading of the KillerCoke flyer reveals that there is no name of any “responsible” individual on it. I’m curious if David, JimS, or anyone else is familiar with this requirement, which as I said I have retrieved only from my memory.
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As an aside, I, too, regret the attention that issues like this get. One is faced with a true dilemma. Letting something like this go unchallenged may not only allow the spreading of false information and misleading innuendo, but may encourage those who get away with it to do more of the same. On the other hand, giving people like this the time of day may only give their trashy accusations “legs” and provide a patina of respectability that they don’t deserve.
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I think a good compromise is to have a community like BMG work out the details in exactly the way it’s being done, but not to “go public” until the issue is resolved (or at least thoroughly researched. That said, I’m aware that this is a (at least semi-) public forum, but what’s the alternative? We get smeared and become fearful of exposing the lies because we don’t want to give them credibility? That doesn’t feel right to me.
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I think this is one of those things that the blogosphere in general, and this group in particular will work out over time. The beauty of an organism such as the one at work here is that we don’t know the right answer until we arrive at it (maybe not even then!).
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Let’s face it, if we all knew what the right thing to do was, we’d just do it, and not have to discuss it. So, I urge those who are frustrated by this process to bear with it and see where it takes us. And, I have utmost confidence that those who disagree with me will tell me so!
I think it’s also a requirement for advocacy.