Republishing Romney

December 14, 2015
posted by Bob Bauer

The Campaign Legal Center was pleased that the Federal Election Commission had fined the independent Romney Super PAC for republishing a Romney campaign video, but it was disappointed that the penalty, $50,000, was low.  Still, there was enforcement, as my colleague Marc Elias pointed out on Twitter.

It is a mixed triumph for the FEC.  The agency got its settlement and collected a fine but also agreed with the Romney Super PAC that the law being applied had been unsettled and that PAC counsel had adopted a reasonable legal position in the absence of a clear rule or established interpretation.

Maybe the agency was being circumspect, paying its respects to the Romney PAC legal position as needed to induce a negotiated settlement.  But the public record now contains an enforcement action in which the agency imposed a penalty for what it characterized as a reasonable legal position on an open question under the law.

The law in question concerns “republication” of a candidate’s campaign materials.  11 C.F.R. 109.23.  Someone who republishes the material, by, say, extracting it from the candidates website or other publicly available source (e.g. Youtube), has made a contribution.  But the candidate who did not agree to the use did not receive a contribution.  So under the republication rules, a contribution may be illegally made but not illegally received, and the contributor but not the candidate is liable for the violation. The rules provide for exceptions such as for a “brief quote,” or for a republication only for the purpose of defeating a candidate.

There is some general uncertainty about the rule’s application.  In a case involving a political committee’s use of candidate photos, taken from her campaign website and included in a mail pieces, two Commissioners argued that there was no “republication” resulting in a contribution.  Several of the photos were only a “small, smiling ‘head shot’; the photos were not “the central elements” of the mailer; the inclusion of the photos had no “material effect on the total production cost” of the mailings; and the republication was “not the goal of the mailers.”  It’s a question of feel, they seemed to argue: the Commissioners declared that it made no “intuitive sense” to find a violation involving republication.  The other Commissioners’ intuitions were different, but finding that the republication was de minimis in value, they voted to close the file with only a letter of “admonishment.”

In the Romney case, arising out of the 2012 Presidential campaign, the Super PAC republished with modest changes a video funded by the 2008 Romney campaign.  The Super PAC lawyers apparently concluded that republication rules did not apply where the materials used came from a previous campaign in a different election cycle.  The FEC’s lawyers agreed that the rules were silent on this point, and that there was “no guidance” elsewhere in the Commission’s deliberations on the rule.  It was a “case of first impression”, and the FEC General Counsel’s office found that the Romney Super PAC legal position was not unreasonable.  The agency’s lawyers recommended against an investigation but urged the Commissioners to seek a settlement anyway.  The settlement agreement included the agency’s acknowledgement that the legal question presented was one of first impression, and that the Super PAC counsel had not advised their client unreasonably.

Now the Romney Super PAC accepted the violation and paid the penalty—score one for the Commission–and there is more than enough room to question whether the Super PAC lawyers’ judgment was, in fact, reasonable.  The more important question is what the Commission did with the case.  It expressed disagreement with a legal judgment it chose to characterize as reasonable, on a question its rules and precedents did not clearly answer, and it added little to the understanding of the republication rules.

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