Officially, it’s a clarification. But a recent decision by the North Carolina Board of Elections allows state and local candidates to do something those seeking federal office can't, directly coordinate where, when and on what outside groups spend their money on during an election. It's a move which has implications for the governor’s race on down.
This ruling deals with some of the most influential groups in modern politics. The type of groups lawyer Michael Weisel represents. "501(c)(3)s and 501(c)(4)s which are essentially issue advocacy groups or special interest groups that care about particular matters."
501(c)(3)’s and (c)(4)’s can raise unlimited amounts of money from both corporate and individual donors. And while they are officially independent groups, not tied to a specific candidate or particular party, they care which candidates win. That’s why you see the bulk of their television ads and mailers during election years.
Campaigns for Congress and the White House are barred from directly working with – or coordinating - with outside groups, although there are loopholes aplenty in the law. And states each set their own rules on coordination. So on July 7, Michael Weisel asked the North Carolina Board of Elections to rule on how closely these outside groups can work directly with candidates.
"This was really an attempt to make sure that the playing field was level," he said, adding it would make sure that "everybody had an idea of what was permitted and what was not."
And the answer he got back generally boils down to this:
"There’s nothing in the statute that prohibits it," according to Kim Strach, executive director of the State Board of Elections.
Now coordination is a broad term. So I asked Strach for some specifics on what 501(c)(3)s and (c)(4)s in North Carolina can do.
Can these outside groups tell a candidate they are considering running an ad?
"Right. That would be legal," she said.
Can a candidate give an outside group their opposition research - all the dirt they had on their opponent? "Yes they could," she said.
Can the outside group and a campaign discuss how much each would spend on TV ads and coordinate who spends what and where in order to get the most bang for their political bucks?
"Yes," she said, "that could happen."
All this can be hugely beneficial for candidates argues Stephen Spaulding, senior policy council for the watchdog group Common Cause, "because that’s money they didn’t have to raise necessarily or money they had to spend out of their own campaign coffers."
501s, he adds, could easily become the unofficial media wing of a campaign. "The advisory opinion in North Carolina does set up a situation where these 501(c)(4) organizations can really operate as phantom arms of political campaigns and accept money from any source and at any limit."
Kim Strach of the North Carolina Board of Elections says, "That’s clearly not true."
Strach sees that interpretation as a misunderstanding of the ruling.
"I would hope North Carolina is not seen as a state where anything goes because I definitely don’t think that we are." And while there is nothing outright banning coordination, there are requirements for these groups. The first, Strach says is issue groups need to stay focused on issues. "Their major purpose is not to support or oppose candidates." The second, no expressed advocacy for one particular candidate, which means they "couldn’t say vote for or vote against or be the functional equivalent of that."
They’re hard and fast rules in principle.
Now, here’s how they’re used in practice. This 2014 ad is from one of Michael Weisel’s clients North Carolina Families First.
http://www.youtube.com/watch?v=6aqfILxtoH4
Focused on issue? Check. In this case Duke energy’s coal ash spill.
No expressed advocacy? Again check. But North Carolina Families first spent$584,000 airing this ad, and they know you can say a lot without saying the word vote. In this case "Chad Barefoot, the Senator for Duke Energy, not us."
There is a third rule, what’s known as the electioneering window. It’s a period of time roughly 60 days prior to the primary and general election. If an outside group airs an ad or mails a flyer that so much as mentions a candidate’s name or shows their image, says Strach, "the statute clearly says an electioneering communication that is coordinated with a candidate becomes a contribution to that candidate." She adds, "If that organization is unable to give a contribution to that candidate then it would be an impermissible contribution." And therefore would break the law.
Stephen Spaulding of Common Cause does applaud these measures.
But what about coordination during the other 245 days in an election year? Or the fact we always seem to be in an election even if a vote is more than a year away?
"Certainly as our campaign cycles seem to grow and grow," says Spaulding, this kind of coordination "becomes more valuable to candidates."
No matter where on the political spectrum they fall. Although outside groups are most associated with conservative causes, the Karl Roves and Koch brothers of the world, they shouldn’t be. Michael Weisel, the lawyer who asked for this ruling, did so on behalf of his clients, the majority he describes with one word. Progressive.
