Hijinks: Mailers Promote Conservative Third-Party Candidates, but They Didn’t Send Them

Voters in at least two Florida districts have received campaign material promoting conservative third-party candidates, but those candidates had no part in creating or sending it.

The obvious conclusion is that the mailers have been sent by liberal groups who are hoping to pump up third-party candidates and split the conservative vote. The Florida Democratic Party engaged this tactic in a limited way, and Republicans have accused the Florida Education Association of making robo-calls on behalf of a tea party candidate.

But voters may never know who sent the latest batch of such direct mail pieces, since they don’t bear any return address or funding disclosure. Lack of identification not only makes them hard to track, but puts them in murky legal territory, according to experts.

In the 2nd district, the mailers promote independent Paul McKain, who told Battle ‘10 that while he’s happy to have the exposure and doesn’t have a problem with the mailers, he doesn’t know where they originated. In fact, when he saw the first one, he “took it to the postmaster in Monticello trying to find out where in the heck it came from,” McKain said.

The Florida Democratic Party sent a similar piece earlier in the campaign, but denied responsibility for the unmarked mailers, as did Democratic nominee Allen Boyd, according to Panama City’s News Herald.

In the 8th district, the mailers promote Peg Dunmire, running on a tea-party ticket. Dunmire and Democrat Alan Grayson both deny sending the mail.

Several of the fliers appear to be related, since they bear the same logo printed on the corner with the words “UNION LABEL.” The Orlando Sentinel spoke to an employee from an area mailing firm that handled the 8th-district flier, but the employee said, “I was told not to disclose where it came from.”

Paul Ryan, an attorney with the non-partisan Campaign Legal Center, told Battle ‘10 that if the disbursements were made by a registered political committee, a disclosure statement would be required. Since no disclosure is given, no candidates or parties are likely behind the mailers, otherwise they would be risking near-certain penalties from the Federal Election Commission.

If the materials were sent by an organization that is not a federally-registered political committee, a disclosure is required only if the mailers engage in “expressed advocacy.” Ryan said there are two legal tests for this. The first is straightforward: words and phrases like “vote for” or “elect” or “defeat,” which are absent from these mailers. The second test is satisfied if the “only reasonable interpretation” of the material is that it is an appeal to vote for or against a candidate. These mailers might qualify, but given the subjective nature of that measure, it’s unlikely that those responsible would face sanctions.

“Their decision to use the phrase ‘call so and so’ suggests to me they knew precisely what they were doing,” Ryan said. He described the technique as “sham issue advocacy” — material masquerading as a plea for deficit reduction or lower taxes, but sent with the intention of affecting voter behavior.

The bottom line is that campaigns may have little recourse, and even if action is taken, it will be long after the election results come in and final ballot totals are counted.

“Mr. Webster’s not a litigious person,” Kathy Mears, a spokeswoman for the Webster campaign, told Battle ‘10. “Daniel Webster is working to get voters, not working to drop a lawsuit on the illegal mailer.”

Matt McCullough, spokesman for the Southerland campaign, echoed similar focus, but said the campaign staff are, “considering all of our legal options.”

“Unfortunately, this deception does a tremendous disservice to the voters of the 2nd district,” McCullough wrote in an email to Battle ‘10. “Allen Boyd should have denounced these illegal mailers, rather than looking the other way and offering tacit approval for these underhanded tactics.”

A couple other examples promoting independent McKain: