Stephanie Cutter gave virtually the same answer as Gibbs had (at 2:08 in this video) in a segment with CNN reporter John Berman: “Well, you do know that we don’t have anything to do with Priorities USA,” and “I don’t know the facts of when Joe Soptic’s wife got sick or when she died,” but “as I said before, I do know the facts of what Mitt Romney did with GST Steel.”
This is convincing evidence that the Obama campaign knew in advance — enough to get a communications strategy together — that the “Understands” ad would make a splash; that Team Obama had to disclaim responsibility for it; and that the super-PAC ad, if properly defended and not repudiated, had a unique potential to critically damage the Romney campaign while appearing to keep President Obama above the fray. But there is an inconsistency in Cutter’s story: As her conference call with Soptic proves, she did “know the facts of when Joe Soptic’s wife got sick [and] when she died.”
The synchronization of events is glaring. An FEC investigation may prove that Team Obama did not correct Cutter’s inconsistency before rolling out the media response because Cutter is far from the only campaign operative that has a tie to the super-PAC ad that cannot be easily explained. But even if this is true, it does not mean the FEC will find a legal violation.
Lawyers defending against a complaint will attempt to whittle down the evidence to what we already know: to the similarities between Priorities USA’s ad and Cutter’s role in the conference call. They will then argue that, by having Soptic tell his story to journalists on the conference call, Cutter made the information “publicly available” under FEC regulations, thereby rendering any subsequent use of that narrative by Priorities USA perfectly legal.
This argument has its problems under campaign law: Making something available to the press isn’t always the same as making it available to the public. And it is belied by Cutter’s desire to hide her role in the OFA conference call to CNN. If Cutter had known, on May 14, that she was making the Soptic narrative “publicly available” so Priorities USA could use it legally later, she wouldn’t have had to feign ignorance to CNN of “the details of when Joe Soptic’s wife got sick or when she died.” Nonetheless, lawyers will argue that if super PACs can get into legal jeopardy by doing nothing more than letting journalists disseminate their ad to the public — the New York Times reports that Priorities USA has yet to put any significant money behind the ad — they can get out of legal jeopardy by relying on information that was already made public to journalists on a conference call, no matter Cutter’s true intent on May 14.
Lawyers also may argue that someone from the campaign did give the idea to Bill Burton — but more than 120 days before Priorities USA produced the ad. FEC regulations say that strategic information goes stale after 120 days and can no longer be counted as evidence of illegal coordination.
Some commissioners may be grateful for any argument that allows them to wriggle out of finding a violation, and there is no guarantee the Justice Department will pursue what the FEC leaves unresolved.
Campaign-finance restrictions are designed to advance progressivism, and it is natural to want to see progressives hoisted on their own petard. But those who would prefer an FEC structured to act more forcefully in this case should remember that an equally divided commission regulating politics is still better than an odd-numbered commission, and that no one who treasures open debate should want to see presidential campaigns regulated by an agency resembling today’s National Labor Relations Board.
— Stephen M. Hoersting is a former attorney at the FEC, an attorney at DB Capitol Strategies, and president of the Institute for Individualism.