Like many Denver voters, my mailbox is full these days with mailers touting different city council candidates running in our municipal election this May. But a recent mailer caught my eye. It was an endorsement piece paid for by the National Association of Realtors Fund out of Chicago. But where did an independent national group get a picture of the candidate with her family? Haven't I seen that pink sweater picture before on ads paid for by the candidate?
Yes, it looks like our favorite fun campaign finance loophole "#McConnelling" has made its way down to municipal races.
#McConnelling became a hashtag game after The Daily Show episode in March 2014 poked fun at Senator Mitch McConnell releasing video footage online without words, just awkward smiles at the camera from the Senator and his family. The purpose of this footage was to provide free high-quality video to any SuperPAC or dark money group that wanted to make a pro-McConnell advertisement and stay "independent" from the campaign. By only using "publicly available" material, these outside groups could avoid any contribution limitations and, in some cases, any public disclosure of their pro-McConnell political spending. The Daily Show invited viewers to make their own videos with this public footage and the results were brilliant.
Such games were created by campaigns and outside groups after the 2010 Citizens United v. FEC Supreme Court opinion which said "independent" speech by groups did not corrupt candidates as a matter of law. Then the D.C. Circuit Court held in Speech Now v. FEC, that groups only spending "independently" could do so with unlimited contributions (creating the SuperPAC). But it is hard to independently support a campaign without smiling pictures of the candidate. Enter #McConnelling: verb, placing the candidate's own high quality images online free in the hopes that big political spenders will use it to independently advertise for your campaign.
This loophole is based on the Federal Election Campaign's regulations and interpretations of the coordination standard in federal law -- and similar standards have been adopted at the state and federal level. Which brings us back to Denver's May 2015 city council election.
Denver City Council Candidate Kendra Black's official campaign website has a photos page which invites any member of the public to "right-click on photo and save to download high resolution image." It appears the national office of the Realtors political action group did just that in order to create the independent expenditure mailer that I received endorsing her. This is probably better than sending a photographer to hide in the trees to get that picture of her with kids playing in the backyard.
None of this is illegal, as long as the Realtors report their independent spending on their next PAC disclosure reports (which they appear to have done when spending in state races in recent years). But #McConnelling shows the fiction the Supreme Court chooses to believe: that political groups spending money to support candidates are acting independently and do not have any corrupting influence on politicians they help elect.