The New York Times reports this morning on an interesting series of advertisements running in Nebraska this month: Senator Ben Nelson, a conservative Democrat, tells voters about his stance on Social Security, debt and various other issues. This normally wouldn’t be notable, except that the Democratic party of Nebraska, not his own campaign, made the ads. In other words, Nelson is directly coordinating with an outside group to help him get elected—and this could change campaign finance dramatically for the upcoming elections and beyond.
When the Supreme Court issued the Citizens United ruling, which allowed outside groups to collect vast sums of money to spend on federal elections, it was generally accepted that such groups still couldn’t coordinate directly with candidates—instead, groups like Karl Rove’s American Crossroads and Crossroads GPS could only produce “issue ads” that, while clearly carrying a political message, didn’t advocate for a specific candidate. Outside groups also couldn’t communicate directly and openly with a political campaign about strategy.
Nelson has gone ahead and decided to just do that anyway—his campaign argues that there are various exceptions in FEC rules that allow it to do so. That’s being contested by the Republican party in Nebraska, but really, it doesn’t matter much. In what so many experts refer to the current “wild west” of campaign finance—where the Federal Elections Commission doesn’t enforce much of anything—when a candidate does something, and the FEC fails to sanction it, it becomes the new norm.
As electoral law expert Richard Hasen told the Times, “Nelson does this, and if he’s successful, then you’ll see others going this route. People push the envelope, and no one pushes back.”
And, expectedly, Rove’s American Crossroads group watched what Nelson did and has already asked the FEC permission to do the same—saying if he can do it, we should be able to:
American Crossroads said in its request that it “may wish to produce and distribute similar television and radio advertisements” featuring incumbents in the 2012 campaigns. The group said that because it was “especially sensitive” about rules banning improper coordination with a candidate, it wanted to check with the F.E.C. first to make sure such ads would be legal.[…]
If the F.E.C. now says outside groups can film candidates and work with them to produce ads—as Mr. Nelson’s do—“that would open up a whole new avenue in advertising and advocacy that previously has not existed for us,” [Jonathan Collegio, spokesman for the group] said. The maneuver may ultimately haunt Democrats, Mr. Collegio added. “By trying to be clever in helping Nelson,” he said, “they may be opening up a can of worms they may not have wanted to open up.”
Crossroads has already said that it plans to spend $120 million on next year’s elections—and if their request to the FEC is granted, that money could be used directly on Republican candidate’s campaigns across the country. And remember: the Crossroads GPS part of that operation doesn’t have to disclose donors, meaning that candidates could then use boatloads of cash to get elected without ever saying who provided the money. Presumably outside Democratic groups would follow suit. Ben Nelson may have just opened the door for secret money in elections very, very wide.