Oct 20, 2010
DCCC Files FEC Complaint Over McCain-Funded Ads For AZ Republican Congressional Candidates
Today, the Democratic Congressional Campaign Committee filed a complaint with the Federal Election Commission over two television advertisements sponsored by Senator John McCain on behalf of two Republican Congressional candidates in Arizona.
The advertisements, approved by Sen. John McCain and paid for by Friends of John McCain, run afoul of the hallmark campaign finance reform legislation that bears the senator’s name. It’s clear that, despite the years McCain spent working on the issue and the Profile in Courage Award he earned for his efforts, McCain simply shrugged it off in order to produce and air these illegal ads.
“John McCain chose to air television commercials that violate the campaign finance legislation that bears his name, rejecting McCain’s years of work on campaign finance reform as well as the legacy of Doris ‘Granny D’ Haddock, a 90-year-old woman who walked across the country in support of McCain’s efforts to enact fundamental campaign finance reform,” said Jennifer Crider, DCCC spokesperson. “Senator McCain either doesn’t understand the law bearing his name or he has deliberately chosen to break it. Senator McCain should do the right thing and immediately pull down these illegal ads.”
The text of the complaint follows:
October 19, 2010
Christopher Hughey, Esq.
Acting General Counsel
Federal Election Commission
999 E Street, N.W.
Washington, DC 20463
Dear Mr. Hughey:
The Democratic Congressional Campaign Committee, by and through its general counsel, files this complaint under 2 U.S.C. § 437g against Senator John McCain; Friends of John McCain, Inc.; Ruth McClung, a candidate for Congress from the 7th District in the state of Arizona; Ruth McClung for Congress; Jesse Kelly, a candidate for Congress from the 8th District in the state of Arizona; and Kelly for Congress ("Respondents"), for violations of the Federal Election Campaign Act.
Violating coordination rules that were written as a direct result of McCain-Feingold, Senator McCain is sponsoring an advertisement for two Republican House candidates in vast excess of his legal limits to their campaigns. The Commission should open an immediate investigation, stop these ongoing violations, and see that Senator McCain commits no further violations of his own law.
John McCain is the senior Senator from the state of Arizona; he is on the ballot for re-election this November. He is the proud architect of the Bipartisan Campaign Reform Act of 2002, "McCain-Feingold," which fundamentally reshaped the raising and spending of money in federal elections. McCain-Feingold required tough new rules on coordinated communications. And it is these very rules that the McCain campaign is now choosing to ignore.
On or about October 18, 2010, Senator McCain's authorized campaign committee, Friends of John McCain, Inc., began airing two advertisements that feature him standing alongside Senator Jon Kyl, his junior Senator. In one advertisement, the senators attack Congressman Raul Grijalva and urge the election of his opponent, Ruth McClung. The advertisement, entitled "Vote Ruth McClung," can be found here: http://www.youtube.com/watch?v=MEDoaGQE8_I. In the other, the senators attack Congresswoman Gabrielle Giffords and urge the election of her opponent, Jesse Kelly. That advertisement, entitled "Vote Jesse Kelly," can be found here: http://www.youtube.com/watch?v=pWYD1JuRYWw. On information and belief, both ads are now running on Arizona television stations, in McClung and Kelly's respective districts.
Senator McCain personally approved these ads. Both end with him saying, "I'm John McCain and I approve this message." The text disclaimer states "Authorized by John McCain and paid for by Friends of John McCain."
- SENATOR MCCAIN IS ILLEGALLY SUPPORTING MCCLUNG AND KELLY IN EXCESS OF THE LIMITS
The Federal Election Campaign Act provides that "expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate." At the direction of McCain-Feingold, the Commission wrote rules providing specifically that a communication will be considered an in-kind contribution to a campaign if it (1) is paid for by an entity other than the campaign; (2) contains express advocacy; and (3) is coordinated with the campaign.
Under McCain-Feingold, agreement or formal collaboration is not required for a finding of coordination. Indeed, Senator McCain has often complained that the FEC's coordination rules are not strict enough, and has gone to court to strengthen them. See, e.g., Shays v. FEC, No. 04-5352, 2005 WL 622966 (D.C. Cir. 2005) (Brief Amicus Curiae of Sen. McCain et al.) ( "The loopholes created by the regulations may seem small and hyper-technical to some. But they are neither. In fact …any loophole, no matter the size, will be exploited and lead to consequences directly at odds with the purposes of BCRA. ").
There can be no doubt that these ads were coordinated with McClung and Kelly, even under the current FEC rules as commonly understood. It is utterly implausible that the state's most senior Republican, who appeared at a Tea Party rally for these two candidates less than ten days ago, would have commenced this ad blitz without their assent, substantial discussion or material involvement.
Moreover, if not coordinated, then the ad would be independent expenditures. Yet tellingly, neither Senator McCain nor his campaign appears to have filed the necessary statement with the Commission, under penalty of perjury, "as to whether such expenditure was made in cooperation, consultation, or concert with, or at the request or suggestion of a candidate …" By their own conduct, Senator McCain and his campaign have tacitly admitted that the ads are coordinated.
- The McCain Campaign Has Made Excessive Contributions to McClung and Kelly
As coordinated communications, these advertisements constitute in-kind contributions from Friends of John McCain, Inc. to the McClung and Kelly campaigns. The value of the advertisements has certainly exceeded the contribution limit. Thus, Senator McCain's campaign has made – and the McClung and Kelly campaigns have received – illegal in-kind contributions.
- The McCain Campaign Has Violated the Conditions of Its Status as Senator McCain's Authorized Committee
The Federal Election Campaign Act prohibits an authorized campaign committee from supporting more than one candidate. A special exception allows Senator McCain's campaign only to contribute up to $2,000 to another candidate; it makes no allowance for larger contributions or independent expenditures. And yet the McCain campaign has spent in vast excess of this limit. It no longer meets the statutory conditions for authorized committee status, and may not enjoy any of its benefits.
- REQUESTED ACTION
This is not the first time Senator McCain has had trouble complying with his own law. In 2007, the Commission came to the brink of litigation against Senator McCain. It found reason to believe that he violated the soft money fundraising restrictions, and its general counsel recommended a finding of probable cause that he broke the law. The Commission ultimately exercised its prosecutorial discretion to take no further action.
Especially at this late hour in the campaign, as he seeks wrongfully to tilt the balance in two contested House elections, the Commission should take immediate action to enjoin Senator McCain and his campaign from further violations. It should seek the maximum penalties permitted by law. And given Senator McCain's professed knowledge of campaign finance law, the Commission has no evident alternative but to follow McCain-Feingold and determine whether the violation of law was knowing and willful, hence requiring referral for criminal prosecution.
Very truly yours,
Brian G. Svoboda
Democratic Congressional Campaign Committee
SUBSCRIBED AND SWORN to before me this ____ day of October, 2010
1 2 U.S.C. § 441a(a)(7)(B)(i).
2 See 11 C.F.R. § 109.21.
3 See Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, § 214(c), 116 Stat. 95.
5 See 2 U.S.C. § 431(17). Indeed, the current definition of "independent expenditure" was written by Senator McCain as part of McCain-Feingold. See Pub. L. 107-155, § 211.
6 11 C.F.R. § 109.1(e). See also id. § 104.4(a) (providing that "every political committee that makes independent expenditures" must report them in accordance with Commission rules).
7 A separate provision of the law allows candidates to support others on the ballot through so-called "coattails" activity – but not through "the use of broadcasting." 2 U.S.C. § 431(8)(B)(x).
8 See id. § 441a(a)(1).
9 See 2 U.S.C. § 432(e)(3).
10 See id. § 432(e)(3)(B).
 2 U.S.C. § 441a(a)(7)(B)(i).
 See 11 C.F.R. § 109.21.
 See Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, § 214(c), 116 Stat. 95.
 See http://zingstrom.wordpress.com/2010/10/10/mcclung-kelly-campaigns-surge-as-mccain-meets-the-tea-party/.
 See 2 U.S.C. § 431(17). Indeed, the current definition of "independent expenditure" was written by Senator McCain as part of McCain-Feingold. See Pub. L. 107-155, § 211.
 11 C.F.R. § 109.1(e). See also id. § 104.4(a) (providing that "every political committee that makes independent expenditures" must report them in accordance with Commission rules).
 A separate provision of the law allows candidates to support others on the ballot through so-called "coattails" activity – but not through "the use of broadcasting." 2 U.S.C. § 431(8)(B)(x).
 See id. § 441a(a)(1).
 See 2 U.S.C. § 432(e)(3).
 See id. § 432(e)(3)(B).
 See MURs 5712 and 5799.
 See Pub. L. 107-155, § 312.