They're Not Allowed to Talk. But Candidates and PACs Are Brazenly Communicating All the Time.
Candidates, committees, and outside-group allies are sharing more information than ever thanks to a law easily bypassed and a Federal Election Commission stuck in gridlock.
The memo from Thom Tillis's campaign was blunt, breathless, and stuffed with seemingly sensitive information. Spending was stretched. Ads had already been abandoned in some markets. Money was being redirected.
The 1,000-word dossier went into remarkable detail about what the North Carolina Republican needed in the closing weeks before the election: TV ads in Charlotte ("Add 1,000 gross ratings points"), digital videos ("I'd like to backfill the $250,000 budget"), and spending in Asheville, a town embedded in the Appalachian Mountains near the state's western edge.
"Only one of our allies is engaged in the mountain counties, putting more pressure on our budget there than I had planned," wrote Jordan Shaw, the Senate candidate's campaign manager. "This has long been a bastion of Republican support but the Democrats believe their cynical message of class warfare will works here."
Campaigns rarely want candid memos like this one to go public during a hotly contested Senate race. But the Tillis campaign had anything but secrecy in mind when it issued this missive to a list so public that even Democrats can sign up for it on Tillis's website. Because although Shaw addressed the memo to donors, it is just as easily read as an explicit wish list aimed at the inboxes of outside allies with whom he cannot otherwise legally communicate about strategy.
"I have never seen anything like it," said Paul S. Ryan, senior counsel to the Campaign Legal Center. "I've never seen such a detailed description of a campaign's media plan blasted out to everyone."
Ryan hastened to add he also saw nothing illegal in the Tillis missive. The restrictions that bar coordination between candidates and their allies only apply to explicit communication between the two sides—a loophole that has been exploited by speaking in public ever since the proliferation of outside organizations following the Supreme Court's Citizens United ruling.
The Tillis memo shows just how brazen politicians and their allies have become. What started as vaguely outlining ad buys through the media and posting minutes-long "B-roll" footage of a candidate on their website has entered a new phase in which campaigns and parties offer insight into their needs as if they were sitting in a boardroom personally explaining it to the men and women who run outside groups.
"Because we cannot coordinate, our campaign is often in the position of reacting to things our allies do after they have done them," Shaw wrote, without irony, in the memo. His solution: opening up his own political playbook and trying to indirectly call the plays for his allies.
The idea behind barring coordination was a simple one. It was to insulate politicians and political parties from the potentially corrupting influence of the unbridled amounts of money being raised by outside groups. But in the four years since Citizens United, candidates and their super PAC benefactors have edged closer and closer.
In Iowa, an outside GOP group supporting Republican Joni Ernst is run by a Republican operative who is a partner in a firm with official advisers to Ernst (the firm says it's created a firewall). In Oregon, a super PAC that backed Monica Wehby earlier this year was funded in part by Andrew Miller, who had been linked romantically to her in local new reports.
Meanwhile, a bipartisan collection of party committees are not so much revealing their agendas as trying to write one for their allies. The National Republican Congressional Committee has an entire website—DemocratFacts.org—to better communicate in plain sight with outside GOP groups. The Democratic Congressional Campaign Committee didn't bother creating a separate website to house its own set of instructions—they're available a click away from the group's home page.
The instructions can be shockingly specific. In a listing for New York's competitive 11th Congressional District race on the DCCC's site, for instance, the committee says voters in Brooklyn who subscribe to Time Warner Cable and Cablevision need to "see more about Michael Grimm's 20-count indictments."
"Voters in Brooklyn should see and read that Michael Grimm was arrested and indicted on 20 counts including mail fraud, wire fraud, lying under oath, hiring illegal immigrants, and failing to report more than $1 million dollars in income, and he does not have the character to represent us in Congress effectively," the site says, using almost word-for-word the kind of language that could appear in a TV or radio ad.
The NRCC is no less precise in its instructions. On a page about Democratic Rep. Tim Bishop of New York, the NRCC lists 21 ZIP codes and advises that "voters in these zips are strongly opposed to closing Gitmo."
The GOP site also includes what amounts to sample scripts for radio, TV, and mailer messaging. One such draft, about Rep. Sean Patrick Maloney, talks about congressional perks—health care for life, taxpayer-funded first-class airfare, and the use of a drone to film his recent wedding. "He's still looking out for himself," the NRCC's suggested message concludes.
And it is not just telling groups what to say but where to say it. The committee added an urgent "UPDATE" to the Maloney page in bold, red, and all caps this week, suggesting: "Republican radio listeners in Orange County need to know the following."
There's ample evidence outside groups are listening. A recent mailer from the American Action Network, a GOP super PAC that can't legally communicate with the NRCC, hits the very themes outlined by the NRCC. It reads in big print: "Vote Against Sean Patrick Maloney—He's only looking out for himself."
A new TV ad announced from the American Action Network on Tuesday also hit Maloney on health care, first-class airfare, and drones. It concludes: "Sean Patrick Maloney: Looking out for himself, not us."
Dan Conston, spokesman for AAN, said his group conducts its own polling and determines where and when it buys ads—but he acknowledged he keeps track of what the NRCC is saying.
"In our advertising, it's based first and foremost off survey research, off the polling," Conston said. "We are also certainly aware of what DemocratFacts says, and that has informed messages to test in polling."
Campaign legal experts have raised objections to some of these practices. In 2012, the Federal Election Commission scrutinized the use of campaign-provided B-roll footage in super PAC ads. But the commission, as it often does, was split evenly between its Republican and Democratic commissioners. It took no action then, and few expect it will anytime soon—giving campaigns and outside groups the green light to continue finding new ways to communicate with one another.
"What we're seeing here is evidence of a fully coordinated but legally allowable media campaign," Ryan said.
The NRCC and DCCC declined to comment.
Tillis spokesman Daniel Keylin said he had "no idea" how outside groups make their decision.
"We wrote the memo for our campaign's fundraisers and donors," he said.