WASHINGTON — As Senate candidate Katie McGinty pulled ahead of Pennsylvania Republican incumbent Pat Toomey in several recent polls, a right-leaning watchdog group filed a complaint alleging she broke federal election law by using her campaign website to cue super-PACs on what political messages to send.
McGinty aides shot back that Mr. Toomey’s campaign — which they claim is behind the allegation — does the same thing.
The complaint from the Foundation for Accountability and Civic Trust alleges that “through obscure postings on her website, McGinty is instructing organizations, with which she is not permitted to coordinate, to run advertisements beneficial to her campaign.”
The complaint sheds light on ambiguity created when the U.S. Supreme Court’s 2010 Citizens United decision opened the doors to unlimited spending by independent groups so long as they don’t coordinate their messages with campaigns.
The Federal Election Commission has taken up these sorts of complaints before, including against candidates who posted video footage that was later used in super-PAC ads and who anonymously and cryptically tweeted internal polling data that helped super-PACs target ads to specific media markets. In those cases, the FEC either deadlocked or ruled that such communication is permissible if the information is publicly available.
That has created an expedient way to skirt FEC rules forbidding direct coordination between campaigns and super-PACs. Candidates have found ways to exploit it by posting travel schedules, video clips, high-resolution photos, logos and internal polling data that super-PACs use to coordinate their ground game, to target advertising where it’s most needed and to create television spots.
“It has become increasingly normalized for candidates to exploit the publicly available information exception to signal to super-PACs what their needs are and where they need help. This is certainly a way of pushing the envelope on coordination,” said Brendan Fischer, associate counsel for the Campaign Legal Center, a watchdog group that seeks enforcement of election law.
And it’s troubling, he said.
“When a candidate signals their needs to a super-PAC, they’re increasing the odds that the supposedly independent group’s expenditures are going to be of maximum value to the campaign,” he said.
Mr. Fischer blames the six-member FEC, which he characterized as “a dysfunctional commission that’s declining to enforce election law.”
The panel often deadlocks along party lines. Its three Democrats want to take a hard line on enforcement, but the three Republicans don’t want to restrict spending on political speech. That means the commission seldom takes action or enforces penalties.
In 126 cases the commission closed so far this year, it found wrongdoing in only 20 and assessed fines averaging $14,000.
The FEC’s inaction has created a gray area that’s hard for campaigns to navigate, too.
“It’s a real dilemma. There are some gray areas that need to be cleared up by the FEC,” said Charlie Gerow of Harrisburg, a Republican campaign strategist. “I wouldn’t want one of my clients to be anywhere near the line when it finally is defined by the FEC, so I would say be very, very cautious.”
In the McGinty case, FACT alleges that the Democrat’s campaign illegally sent signals to super-PACs using web postings of information that “voters need to know,” including policy positions and biographical nuggets that later appeared in advertisements paid for by a super-PAC run by EMILY’s List. The information also appeared elsewhere in more prominent places on the website, but FACT alleges that its placement on the “notices” cued EMILY’s List to craft ads around specific points.
Ms. McGinty’s supporters say the complaint is frivolous and that FACT is a right-wing group that filed it only to generate publicity even though it knows the FEC won’t find her in violation.
The McGinty-Toomey matchup has become one of the hottest races in the country as Democrats fight to regain control of the Senate. The last four polls show Ms. McGinty a few points ahead of Mr. Toomey, but in all cases her lead is within the surveys’ margins of error. In the spring, Mr. Toomey led all polls, sometimes by double digits.
Mr. Toomey’s aides say he had nothing to do with the complaint, but McGinty aides tie the incumbent Republican to it nonetheless.
“It’s laughable that Wall Street Pat Toomey’s big-money Republican pals in D.C. are trying to smear Katie on this,” McGinty spokesman Sean Coit said.
Rachel Thomas, spokeswoman for EMILY’s List, had a similar response.
“Sen. Toomey is fueled by special interest Wall Street cash,” she said. “Of course, the GOP is working overtime on these false tactics to desperately distract from Toomey’s record of putting special interests ahead of Pennsylvania women and families.”
FACT bills itself as a nonpartisan, nonprofit ethics and accountability watchdog that was founded in 2014 to shine a “lantern” on activities of candidates of both parties, even though most of its targets have been Democrats.
It is headed by Matthew Whitaker, a former U.S. attorney who ran in the 2014 Iowa Republican primary for U.S. Senate, and funded through Donors Trust, a nonprofit pass-through that forwards contributions to organizations from conservative donors who wish to remain anonymous.
Mr. Whitaker and FACT chief counsel Kendra Arnold say the McGinty campaign has egregiously violated campaign finance law.
“You could put up a high-resolution picture or various campaign videos on a publicly accessible part of your website, but where you cross the line is where you’re directing a super-PAC to a very specific part of your website to run a certain script and — in some cases — in certain areas of a state, then you do direct what the messaging should be,” Mr. Whitaker said.
The McGinty webpage seemed intended for a different audience than the rest of the campaign website, he and Ms. Arnold said. The link to it — labeled “notices” — was less prominent than others on her home page and included no logos or links back to other parts of the website, unlike its other pages. And, they pointed out, its content changed soon after PACs ran ads using the information on it.
In March, the web page highlighted biographical information about the McGinty family that EMILY’s List included in commercials aired on April 4.
Days later, the campaign updated the “need to know” section to say that primary candidate Joe Sestak supported a plan that would have cut benefits and raised the Social Security age. On April 11, EMILY’s List ran an ad attacking Mr. Sestak on those points.
Mr. Coit noted that Mr. Toomey’s campaign website “has specific pages designed to tell outside groups how to attack Katie.”
For example, last month Toomey campaign consultant Jon Lerner posted a memo “to friends and supporters” on the state of the race. In it, Mr. Lerner revealed that an internal poll showed Mr. Toomey was ahead by a few points and noted that recent ads by conservative super-PACs had focused on pro-Toomey messages rather than anti-McGinty ones.
“There has been no case made against McGinty [since late June] other than from the Toomey campaign itself,” Mr. Lerner wrote. “She has so many weaknesses that it’s a challenge to pick which ones to focus on,” he wrote, then listed her vulnerabilities and revealed the campaign’s fall strategy. Its aim, he wrote, is to “make the case for Pat Toomey’s outstanding record of promoting economic growth and public safety, and the case against Katie McGinty’s dangerous liberal record.”
Similarly to Ms. McGinty’s web page, the Lerner memo included a list of links to news reports and other sources supporting his points.
Mr. Whitaker said the Lerner memo doesn’t raise the same concerns as Ms. McGinty’s website.
“The bottom line is that the McGinty campaign appears to be violating the law, and the Toomey campaign seems to be updating its supporters,” he said.
An FEC spokesman declined to comment on FACT’s complaint.
“To protect the interests of those involved in a complaint, the law requires that any commission action on an enforcement matter be kept strictly confidential until the case is resolved,” said the spokesman, Christian Hilland.
Washington Bureau Chief Tracie Mauriello: tmauriello@post-gazette.com; 703-996-9292 or pgPoliTweets.
First Published: August 15, 2016, 4:00 a.m.
