Many of the political ads you see and hear are produced by independent third-party interest groups. They are called “independent” because it’s illegal for these groups and candidates to coordinate their campaigns.
But this year it’s harder to distinguish between these groups and some candidates in North Carolina’s U.S. Senate Race.
This year the campaigns of Thom Tillis and Kay Hagan are pushing the boundaries of election law.
If you haven’t seen this ad yet, there’s a good chance you will. It’s scheduled to run more than 400 times in Charlotte alone over the next two weeks.
It begins with ominous shots of refinery smokestacks, all the color missing from the scene. Then, like the wizard of oz, transitions to color, and scene after scene of Kay Hagan, smiling, reading, talking with younger and older people alike.
But Hagan’s campaign did not produce this ad. A clean energy advocacy group based out of Knoxville did. It’s called the Southern Alliance for Clean Energy. Stephen Smith is their executive director. "We are spending just a little bit less than a million dollars on the ads running in the three major media markets in North Carolina over two to three week period."
The ad runs 30 seconds and half the of the footage was produced by Hagan’s campaign. It originally was used for a different ad, one of their own and it's easy to find. It is the only ad featured in the media section of Kayhagan.com, her campaign website.
The voice over and music are different but the scenes are exactly the same. Kay Hagan, smiling, reading, talking with younger and older people alike. Below this post is a big red button that says download video.
Stephen Smith of the Southern Alliance for clean energy freely admits his group got the footage of Hagan from Hagan’s campaign. "My understanding is that candidates can now put up generic b-roll or just generic footage that is available for any party to use."
Here is where a new campaign tactic that may run afoul of election law comes into play. By law candidates and outside groups are banned from coordinating with a campaign. But it’s not hard for these groups to figure out what a candidate wants says Dale Eisman of Common Cause, a national campaign watchdog group. "One sort of knows what the other wants sometimes simply by watching the news reports and seeing what the candidate is talking about today or this week or what themes he or she is emphasising the independent group knows what the campaign would like it to do."
The use of b-roll, that generic footage of candidates that can easily be re-purposed by outside groups crosses party lines.
Thom Tillis, one of the Republicans vying for Hagan’s seat, has a perfect example of b-roll conveniently posted on his Youtube page.
Kay Hagan also has a similar b-roll production buried on her campaign website.
"One might credibly argue that posting b-roll footage on your website is a suggestion to outside groups that they create ads supporting your candidacy," says Paul Ryan, senior counsel at the Campaign Legal Center in Washington D.C. "It's hard to imagine another purpose for candidates putting b-roll footage on their own websites other than suggesting that outside groups run ads."
That suggestion alone could amount to de facto coordination.
Calls and emails to the Tillis campaign asking why they posted b-roll, what it accomplishes for the campaign or who they hoped might use it went unanswered.
Similar requests to Kay Hagan’s campaign were answered only in a statement that read in part:
It's out of our control how groups might use that footage for or against us.
Both major political parties have levied complaints about the other and outside groups about republishing materials such as b-roll footage. Three of the six members of the Federal Election Commission have ruled this kind of republishing is permissible. But that doesn’t mean the F.E.C approves says Bob Lenhard who chaired the F.E.C. in 2007.
"It’s a controversial view because there are three commissioners who believe it is in fact a violation of the agency’s regulation and the statute prohibiting republication of a campaigns material." But adds Lenhard, "Because it requires four votes to proceed in an enforcement action, the fact that three commissioners hold the view that you can use b-roll footage means that there will not be enforcement actions going forward against groups that use it."
So a tie at the F.E.C. just means the group is deadlocked and the issue remains unresolved.
Lenhard now practices election and political law in Washington DC. And he’s advised candidates before.
So I asked him this hypothetical question. Would you tell a candidate today that its legal to produce b-roll footage and then let outside groups use that footage in their own ads?
There was a long pause. And then Lenhard did the lawyerly thing to do, he answered a somewhat different question. "I think that campaigns at this point can comfortably feel that if they do put their b-roll footage on publicly available websites, there are not four votes to find that a violation of the law."
His answer - like the law - is open to interpretation.
4:00 p.m. UPDATE:
American Crossroads, a Republican SuperPAC headed by strategist Karl Rove, is now airing an ad in Charlotte and Raleigh that uses b-roll produced by Thom Tillis's campaign.
You can find the original Tillis B-roll (Montage 2) posted above.