The California Republican Party has asked the Federal Election Commission whether two California congressmen, their campaigns and a Democratic super PAC violated federal law by having the congressmen appear in the PAC’s video.
But an election-law expert says it’s a weak case, and the House Majority PAC says state GOP chairman “Tom Del Beccaro’s swan song amounts to a baseless, politically-motivated complaint not worth the paper it’s printed on.”
“This laughable effort is the period at the end of the sentence that defines Del Beccaro’s embarrassing term as GOP party chair,” PAC spokesman Andy Stone said Wednesday.
The House Majority PAC’s recent video featured members of Congress including freshmen Ami Bera, D-Rancho Cordova, and Raul Ruiz, D-Palm Springs, thanking the PAC for its involvement in their 2012 campaigns.
“We were grateful to see House Majority PAC formed so we could actually have allies on our side that were helping us get our message out,” Bera said in the video. “That in many ways was the difference in the outcome and one of the big reasons why we won this time.”
“When we got word that Darth Vader himself, Karl Rove, and the Crossroads was coming in and you had to recruit the team to fight back that Death Star,” Ruiz said in the video. “We fought back, and we won.”
Text at the video’s end invites viewers to visit the PAC’s website “to learn more about our work and join our efforts.” The video also carries disclaimers noting the House members are “not asking for funds or donations.”
In letters (Bera, Ruiz) sent to the FEC, Del Beccaro notes that “committees that solicit and accept unlimited contributions from individuals, political committees, corporations and labor organizations for the purpose of making independent expenditures are prohibited from making direct contributions to federal political committees. The FEC defines a ‘contribution’ to include ‘any gift, subscription, loan, advance, or deposit of money or anything of value made by a person for the purpose of influencing any election for Federal office’ (emphasis added).”
The complaints say the cost of creating the video is an in-kind contribution to Bera’s and Ruiz’s campaigns – a contribution House Majority PAC is prohibited from making, and Bera and Ruiz are prohibited from taking. (Remember, super PACs can’t give directly to candidates – they can merely work on a candidate’s behalf, so long as their work is independent and not coordinated with the candidate’s campaign.)
The FEC in 2011 split 3-3 on whether there was a problem with comparable situation involving U.S. Sen. Ben Nelson, D-Neb.
“Nevertheless, it takes the affirmative vote of four commissioners to pursue an enforcement action. I don’t see four votes on the commission agreeing with the California GOP’s interpretation of the law,” Paul Ryan, senior counsel at the Campaign Legal Center in Washington, D.C., said Wednesday.
Ryan said the FEC “has a fairly detailed (yet ineffective) regulation” on whether a public communication such as the House Majority PAC video constitutes an in-kind contribution. To qualify as such, the ad must meet both prongs of a two-prong test—the “content” prong and the “conduct” prong, he said.
“The House Majority PAC video clearly meets the ‘conduct’ prong, because the officeholders were directly and materially involved in filming the video,” Ryan said.
But for ads distributed more than 90 days before a House/Senate election or more than 120 days before a Presidential election, the “content” prong is only met by ads that contain campaign materials produced by the candidate, or by ads that expressly advocate the election or defeat of the candidate.
“The House Majority PAC video seemingly contains neither,” Ryan said. “It appears that the PAC produced the entire video (i.e., no candidate materials were used), and the video does not expressly advocate any candidate’s election. On the contrary, the video is all about officeholders expressly advocating the value/importance of the PAC.”
The content standards are more easily met during the 90 days right before a congressional election, Ryan noted: Even identifying a specific candidate in such a video during that time period would run afoul of the rules. But released after the election as this video was, it seems above-board.