Conservative group files complaint vs. NC Senate candidate, outside group
A conservative watchdog group has filed a federal elections complaint alleging improper coordination between U.S. Senate candidate Cal Cunningham and an outside group spending big on his behalf.
Cunningham and VoteVets Action Fund, which has spent $3.3 million on television ads about Cunningham’s background and candidacy, deny the allegations made by the Foundation for Accountability and Civic Trust. FACT is known for filing election-related complaints against candidates, mostly Democrats.
The Federal Election Commission has not pursued coordination complaints over the last decade and, outside experts say, campaigns across the ideological spectrum have been engaged in similar behavior without penalty.
“The FEC has had similar issues before it in the past, however each case is determined by the specific facts and legal arguments presented in only that case,” said Kendra Arnold, executive director of FACT. “The facts of this case are clearly different because the behavior is extremely blatant and is clearly a violation.”
FACT filed a similar complaint to the one against Cunningham against VoteVets Action Fund and Democratic Sen. Gary Peters of Michigan earlier this month.
“It is baseless and purely political,” said Jon Soltz, chairman of VoteVets, in an emailed response to McClatchy about the Michigan complaint. ‘Similar complaints made against both sides of the aisle have been dismissed by the FEC in the past, and we are confident that the FEC will do the same.”
Cunningham is one of five Democrats competing for the nomination to take on Republican incumbent Sen. Thom Tillis, who faces his own primary. Tillis faced an FEC complaint about coordination during his successful 2014 Senate campaign.
The complaint vs. VoteVets
VoteVets PAC has endorsed Cunningham, an Army veteran and lawyer who earned a Bronze Star during his service in Iraq and Afghanistan for his prosecution of contractor fraud. The PAC donated the maximum-allowable $10,000 to his campaign. As a PAC, it is registered with the FEC, must disclose its donors and expenses and can coordinate fundraising efforts with candidates.
VoteVets Action Fund is its sister organization. It is classified as a nonprofit social welfare organization, whose primary purpose cannot be political activity under IRS rules. It says its mission is to educate Americans about issues of important to veterans. It does not have to disclose its donors.
The liberal groups share leadership, but “does not coordinate its independent expenditures activities with candidates,” Soltz said.
The Action Fund has been airing television ads in support of Cunningham since late December. The ads, Soltz said, do not “advocate for the election of Cal Cunningham to the United States Senate, but informs the viewer about Cunningham’s past work and accomplishments.”
But the FACT complaint alleges that the Cunningham campaign has used a public photo-sharing account to coordinate with VoteVets Action Fund — and points to a short turnaround as evidence of coordination. The complaint says that the Cunningham campaign uploaded photos to its Flickr account on Dec. 20 and some of those same photos appeared in VoteVets Action Fund ads beginning Dec. 25. VoteVets reserved airtime for its ad on WCTI in New Bern on Dec. 20.
“Based on the timing, messaging, and photographs, Cunningham is coordinating with VoteVets.Org Action Fund,” the complaint concludes. “This conduct has resulted in what likely constitutes multiple illegal in-kind contributions to Cunningham’s campaign.”
The complaint also alleges a coordinated fundraising appeal on Dec. 27 between the Action Fund and the campaigns of four Democrats running for Senate, including Cunningham. However, the email described contains a disclaimer at the bottom that says “Paid for By VoteVets Political Action Committee.”
“From this complaint it appears that the Cunningham campaign was working hand in hand with VoteVets, which is a clear violation. These actions prove that Cal Cunningham’s number one policy initiative of cracking down on corruption is just a smoke and mirrors tactic to deceive North Carolinians,” said Andrew Romeo, campaign spokesman for Tillis.
Cunningham has pledged not to accept corporate PAC money in the campaign and his platform calls for overturning the Supreme Court’s 2010 decision “that has allowed unlimited dark money to pour into our elections.” VoteVets Action Fund is considered a “dark money” group. Cunningham’s campaign said there is a clear choice between Cunningham and Tillis, who has accepted corporate PAC money.
“Cal is committed to getting big money out of politics, including by overturning Citizens United and eliminating dark money, which will be one of his top priorities when he is elected to the Senate,” said Rachel Petri, communications director for the Cunningham campaign.
‘Quite commonplace’
“It has become common practice for candidates to signal to supportive super PACs or dark money groups their preferred messaging and images and video B-roll. It does represent an embrace of the big-money political system made possible by Citizens United,” said Brendan Fisher, the director of the federal reform program at the Campaign Legal Center. “It’s certainly not laudable but given current FEC interpretations of the law, it’s unlikely to result in any legal liability.”
The posting of photos or B-roll video — that is, generic shots of the candidates, usually in different settings — to campaign websites or social media platforms “is quite commonplace,” said Brendan Quinn, outreach manager at the Center for Responsive Politics.
“It’s kind of an unspoken that candidates all over the ideological spectrum will have B-roll on their websites — and not have a good explanation for why. They’re walking through their hometown and shaking random people’s hands. A veteran. Same thing for a baby. Posing with people of different socioeconomic status,” Quinn said.
“Why would you post video of you walking through your hometown?”
Outside organizations can use information from candidate speeches or interviews, a candidate’s website, press releases and any publicly available website without running afoul of coordination rules, according to the FEC.
For example, there are links to generic photos and videos at the bottom of Cunningham’s profile page on his website. The video includes Cunningham in different settings, like a restaurant and office.
Tillis’ campaign website has pictures of the senator in several different settings — with his wife, with his dog, talking to potential voters on a farm and in a cabin — that can be downloaded. Recent U.S. Chamber Action television ads in favor of Tillis include footage that previously appeared on Tillis accounts.
But no organization has filed a complaint against Tillis, and the ads came months after the Tillis’ campaign released the footage, a key difference from the complaint made against Cunningham.
During Tillis’ 2014 campaign against then-incumbent Sen. Kay Hagan, his campaign posted a detailed memo to donors — though most read it as a roadmap for outside groups to intervene — outlining where the campaign needed help in very specific detail. It was not considered illegal or in violation of campaign finance rules.
In 2014, American Democracy Fund filed a complaint claiming American Crossroads “republished video footage taken from U.S. Senate candidate Thom Tillis’s campaign materials in its own ads.” A divided FEC did not impose any discipline in that case.
“Every election cycle candidates and Super PACs find new ways to work more closely with one another, and the FEC has typically allowed them to get away with it,” Fisher said. “The FEC has typically turned a blind eye to many forms of coordination.”
Who is making the complaint?
FACT calls itself a nonprofit organization dedicated to promoting accountability, ethics, and transparency in government and civic arenas and says, in its complaint, it achieves its mission “by hanging a lantern over public officials who put their own interests over the interests of the public good.” The group used to be headed by former Acting Attorney General Matthew Whitaker.
In 2015, the group filed a complaint against Republican Rep. Mark Meadows of North Carolina for improperly paying severance to his former chief of staff, which led to discipline against Meadows by an ethics committee.
In the last year, FACT has called for investigations into several prominent Democrats including Peters, Rep. Alexandria Ocasio-Cortez, former Georgia gubernatorial candidate Stacey Abrams, Sen. Kirsten Gillibrand, New York City Mayor Bill de Blasio and Rep. Lucy McBath.
Vacancies have left the FEC without enough members to handle enforcement. The FEC has not punished anyone for coordination since the Citizens United court decision in 2010, according to Issue One, though in 2015 the Justice Department had its first conviction for illegal campaign coordination.
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This story was originally published January 22, 2020 at 4:05 PM with the headline "Conservative group files complaint vs. NC Senate candidate, outside group."
