The “Understands” ad, by Obama super PAC Priorities USA, insinuates that Mitt Romney is responsible for the death of the wife of former GST Steel employee Joe Soptic, five years before she died, simply because Soptic lost his job (and thus his health insurance) at a plant owned by Bain Capital.
Conventional wisdom has it that the ad is both despicable and false. The question to be answered is: Was it coordinated with either the Obama campaign or the Democratic National Committee?
Federal law typically treats a super-PAC ad coordinated with an official campaign or political party committee as an illegal in-kind contribution to the candidate or party committee. Civil penalties for making an in-kind contribution are warranted where there is “probable cause to believe” that coordination occurred.
Events surrounding the “Understands” ad should easily satisfy the probable-cause standard. But it’s not clear that the FEC will find a violation, or that conservatives would prefer an agency structured to do so.
Priorities USA’s actions alone meet the first requirement of an illegal in-kind contribution: The group paid for a communication that mentioned a presidential candidate within 120 days of the November 6 election. The next step is to determine whether someone at the campaign or the DNC suggested to someone at Priorities USA that a certain kind of ad would be advantageous to President Obama’s reelection, or transmitted material information to Priorities USA regarding the ad’s content, timing, or distribution. There is evidence for this as well.
Organizing for America is an arm of the DNC, and Stephanie Cutter is a deputy manager of the Obama campaign. On May 14 of this year, OFA and Ms. Cutter hosted a conference call in which Joe Soptic read to journalists a prepared statement recounting his wife’s travails and Mitt Romney’s supposed role in them. By August, the “Understands” ad featured Mr. Soptic telling, to the camera, nearly the exact story he relayed on Cutter’s conference call.
It is possible for any agent to illegally suggest an ad or transmit material information, up to and including Obama confidants David Axelrod and David Plouffe, who reportedly attended Priorities USA fundraising events earlier this year. An FEC advisory opinion permits attendance at super-PAC fundraisers but does not remove the fact of attendance from the scales of justice — i.e., the FEC may treat attendance as evidence of coordination.
Further, Joe Soptic has already appeared in three official Obama-campaign ads, and Stephanie Cutter has done a better job defending the “Understands” ad in the media than has Priorities USA co-founder Bill Burton.
There’s something else worth noting. In early answers about the Priorities USA ad, members of Team Obama followed a template that would later catch Cutter in a lie. On MSNBC’s Morning Joe, senior campaign adviser Robert Gibbs answered friendly questions from veteran reporters Mark Halperin and Sam Stein. Halperin wanted to know Gibbs’s opinion about the propriety of an ad “basically making the accusation that Governor Romney was responsible for that woman’s death.” Gibbs remained calm and answered slowly, distancing the campaign from responsibility for the ad but not from its message: “Look, Mark, I think, as you said, this is an ad by an entity that is not controlled by the campaign,” and “I certainly don’t know the specifics of this man’s case,” but “we know [that] when people lose their jobs they tend to lose their health care.” Gibbs’s denigration of Romney’ s actions at Bain grew even stronger after a follow-up question from Sam Stein.
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.