Russ Feingold, the independent-minded Democratic senator from Wisconsin, helped author the most significant campaign finance law of our time...and now a conservative group says he's violated it.
The American Future Fund announced it is filing a complaint with the Federal Election Commission, alleging that Feingold has violated the 2002 McCain-Feingold law on technical grounds: namely, that he appears at the end of his TV ads and tells viewers that he "supports" the given message, rather than saying he "approves" it.
"While everyone else complies with the hyper-technical and onerous disclosure requirements of the McCain-Feingold law - and shorten their substantive messages so that they can inform viewers that they "approved" their own advertisements - Senator Feingold simply ignores requirements," AFF spokesman Nick Ryan said today.
"As the author of these laws and a Harvard lawyer, perhaps he has realized how foolish his disclaimer laws are and decided they shouldn't apply to him."
The Iowa-based free-market group is the same that aired a TV ad accusing Iowa Democratic Congressman Bruce Braley of supporting the Park 51 mosque and community center near the former site of the World Trade Center in New York. AFF also launched a 14-district ad campaign against vulnerable House Democrats in September. It has reportedly spent nearly $8.9 million this election cycle, making it a formidable player in the midterms.
And as a 501(c)4 nonprofit that does not disclose its donors, AFF is the type of group that campaign finance reformer like Feingold have sought to crack down on, and which Democrats including President Obama have vilified on a national scale this year.
Feingold's campaign doesn't think it violated the law and basically called the complaint a cheap shot.
"It's a frivolous complaint without merit from a group with secret donors," said John Kraus of the Feingold camp. "The ad leaves no doubt as to who approved the ad. It begins with a direct-to-camera statement from the Senator, stating that he "supports" the advertisement. It ends with a written statement saying that he "approves" the advertisement."
Feingold has consistently used the word "support" in his campaign ads this year. Here's an example:
AFF's complaint rests on a narrow interpretation of the McCain-Feingold law's "stand by your ad" provision.
It's debatable whether the law actually requires candidates to say the word "approved." The Federal Election Commission--the body responsible for interpreting campaign finance laws and court decisions and implementing those policies through regulation--does not appear to have ruled on the matter in any advisory opinions.
Officially known as the Bipartisan Campaign Finance Reform Act of 2002, and now codified as Public Law 107-155, the McCain-Feingold law requires a statement, made out loud by the candidate, that "identifies the candidate and states that the candidate has approved the communication."
Here's the relevant section of the law:
Any communication described in paragraph (1) or (2) of subsection (a) which is transmitted through television shall include, in addition to the requirements of that paragraph, a statement that identifies the candidate and states that the candidate has approved the communication. Such statement--
''(i) shall be conveyed by--
''(I) an unobscured, full-screen view of the candidate making the statement, or
'(II) the candidate in voice-over, accompanied by a clearly identifiable photographic or similar image of the candidate; and
''(ii) shall also appear in writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the back- ground and the printed statement, for a period of at least 4 seconds.
The FEC, in its compliance brochure for candidates, basically repeats the same language:
televised communications must include an oral disclaimer spoken by the candidate in which the candidate identifies himself
or herself and states that he or she has approved the communication. 11 CFR 110.11(c)(3)(ii).5
This disclaimer can be conveyed in one of two ways:
• A full-screen view of the candidate making the statement (11 CFR 110.11c)(3)(ii)(A)); or
• A "clearly identifiable photographic or similar image of the candidate" that appears during the candidate's voice-over statement (11 CFR 110.11(c)(3)(ii) (B)).
Which brings up a question of how literally the McCain-Feingold law meant the concept of stated approval to be taken. It requires that a candidate say he "has approved the communication," not the a candidate say he "has 'approved' the communication."
"The law requires the use of the word 'approved' so that candidates are forced to take ownership of, and personal responsibility for, their campaign ads," AFF wrote in its announcement of the complaint. "Senator Feingold's statement that he merely 'supports' the message does not rise to the level of what was intended."
As of this morning, the FEC had not yet received the complaint according to a spokesperson.
UPDATE: Some more context from the FEC's massive regulatory guidebook: FEC regulations specify two examples of statements candidates can make to comply with the stand-by-your-ad provision--both of which include the word "approve"--but the FEC guidebook notes that "they are not the only allowable statements."
From the book:
The following are examples of acceptable statements that satisfy the spoken statement requirements...but they are not the only allowable statements:
(A) ''I am [insert name of candidate], a candidate for [insert Federal office sought], and I approved this advertisement.''
(B) ''My name is [insert name of candidate]. I am running for [insert Federal office sought], and I approved this message.''