Ohio Democrats to File Complaint Against American Crossroads

Ohio Democrats to File Complaint Against American Crossroads

By Erin McPike - August 23, 2010

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.

Democrats note that the FEC's advisory opinion in the EMILY's List situation with Sutton prove that American Crossroads did violate regulations, because the FEC ruled in 2006 that EMILY's List did break the rule. However, American Crossroads argued that the FEC's opinion at the time, which suggested no action be taken, represents their case accurately, because in this case, too, there was no coordination with the Portman campaign. (The FEC found four years ago that the EMILY's List arm that produced a communication on Sutton's behalf did not do so based on an entreaty from Sutton's team.)

An exception to the regulation allows outside groups to incorporate a candidate's campaign material "that advocates the defeat of the candidate or party that prepared the material." In other words, if American Crossroads had borrowed images from Democratic Lt. Gov. Lee Fisher's campaign Web site for the purpose of airing an ad to bash him, the ad would have been compliant. But because the committee is operating in support of Portman in this case, it is in violation of those rules.

Nevertheless, there is a discrepancy about one subsection of the regulation, which allows for a group to republish a candidate's materials if: "The campaign material used consists of a brief quote of materials that demonstrate a candidate's position as part of a person's expression of its own views."

To that end, the ad does not clarify any piece of Portman's jobs plan - except to inform the ad's viewers that he has one - and there is no quote included at all. In the ad, an announcer states that Portman is "finding solutions in Columbus, Cleveland, Toledo, Dayton - ideas from Ohioans in all 88 counties" and goes on to note, "the talkers gave us stimulus and debt, but Portman hears Ohio families, strengthens job creation." Other text in the ad simply states, "connecting you to the future," which appears to be culled from campaign signage.

Even a prominent GOP election lawyer contacted for this story explained that republication of campaign materials is generally recognized as coordination and is a problem. "Asserting a 'quote exception' defense is weak," the attorney said, because "the FEC talks about quotes in the context of endorsements not relevant to using photos or logos."

Following the distribution of the TV spot, the Columbus Dispatch wrote that it "is extremely misleading by omission" and goes on to suggest, "A viewer would assume that: Portman has never held political office, does not wear a business suit and tie, and is just some guy who hangs out at barbecues," and therefore does not inform viewers about what Portman's position on the subject is.

Erin McPike is a national political reporter for RealClearPolitics. She can be reached at Follow her on Twitter @ErinMcPike.

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