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Defying the Odds

Defying the Odds
New book about the 2016 election.

Tuesday, August 24, 2010

American Crossroads Ohio Legal Questions

RealClearPolitics reports:

American Crossroads' new TV ad in Ohio that bolsters former GOP Rep. Rob Portman's Senate candidacy and message on jobs appears to be in violation of FEC coordination regulations, but a recent precedent shows that the group could escape without a fine.

The 527 committee's ad showcases three photographs that originated from Portman's campaign Web site and jobs plan document, and FEC rules state that using such photos constitutes an in-kind contribution that exceeds the legal limits.

Officials connected to the committee say the photos were "publicly sourced," meaning that Portman campaign site photos were posted to another site, and the committee plucked them elsewhere. Both sides cite a precedent involving EMILY's List's assistance of Ohio Democratic Rep. Betty Sutton's 2006 campaign to make their case, and an official at the Ohio Democratic Party confirmed Sunday night to RealClearPolitics that it will file a complaint to the FEC today for an official ruling on the matter.

The Washington Examiner reports on the group's defense:

But former FEC Chairman and RNC Chief Counsel Tom Josefiak, the group’s counsel, believes the case is a slam dunk in their favor. In a memo obtained by The Examiner, he writes:

“…American Crossroads produced its Portman ad entirely independently of the Portman campaign, and any content that it did not produce itself was obtained from widely available public domain sources on the Internet, including YouTube. Absolutely no material used in the ad was obtained from the Portman campaign website, or in any other way from the Portman campaign.”

Josefiak cites a 2007 FEC case, New Trier Democratic Organization, in which a group had republished a campaign photograph in a flyer and was accused of coordination. The organization in question argued that the campaign had not given it permission to use the image, and that it had obtained the photograph from a different source. The FEC noted that “there are copies of the same photograph in numerous places in the public domain,” and ruled that the complaint against the group was based on “unwarranted legal conclusions from asserted facts, or mere speculation” about the photograph’s origin.

The ruling is especially significant, Josefiak argues, because it came after a 2006 ruling that found fault with but applied no penalty to EMILY’S List, a group that backs candidates who support legalized abortion. The group had used a photograph from the campaign of Rep. Betty Sutton, D-Ohio, prompting a complaint. The 2007 New Trier ruling, Josefiak writes, appears to follow the dissenting opinion in the EMILY’s List case, in which two commissioners had opined that the regulation should not apply.

Says the group’s spokesman, Jonathan Collegio: “We are confident in our legal standing and in the appropriateness of our spots, and that the complaint will be dismissed by the FEC.”