Why Earlier Conventions Will Mean Even More Secret Attack Ads in 2016

Jan 25, 2014 7:09am
GTY rnc 2012 jtm 140123 16x9 608 Why Earlier Conventions Will Mean Even More Secret Attack Ads in 2016

Republican vice presidential candidate Paul Ryan speaks during the third day of the Republican National Convention at the Tampa Bay Times Forum in Tampa, Fla., Aug. 29, 2012. (Mark Wilson/Getty Images)

Now that Republicans have moved their convention forward by up to two months — somewhere from the last week of June to the second week of July 2016 — outside political groups will be able to air attack ads in late summer without disclosing them, as the campaign reaches a fever pitch.

As has been noted by Time magazine, the move will solve a money problem for the GOP’s presidential candidate, allowing him or her to tap into general-election funds sooner. Loaded up with dollars dedicated to his primary campaign, Mitt Romney ran into this problem in 2012, legally barred from dipping into his general-election funds until after he was nominated in a Republican convention that didn’t start until Aug. 27.

The new calendar will solve that.

And it will help outside groups get going earlier, by launching the general-election season sooner. With the nominee chosen, groups can get into general-election mode faster.

But it will also allow for a glut of undisclosed, late-summer attack ads from the most secretive of outside-spending groups — just as presidential campaigns can crescendo into dizzying blurs of negativity.

“I think we would see a flood of undisclosed, candidate-specific sham ‘issue ads’ in the summer months, as a result of them moving the convention date, that we have never before seen,” said Paul S. Ryan, senior counsel with the Campaign Legal Center, a D.C.-based election- and campaign-finance law group that has pushed for tighter rules on disclosure and campaign money.

The answer to why that should be is complicated, but reading it will undoubtedly make you a better citizen, improve your posture, and possibly help you achieve any fitness/weight-loss goals you may have*. It goes like this:

1. The calendar determines whether groups must disclose spending on “issue ads” — typically, negative TV ads that mention candidates without explicitly urging viewers to vote for/against them. In the past, “issue ads” have included insinuations that Mitt Romney was responsible for a death and that John Kerry was treasonous for comments about Vietnam. A familiar trope these days is the exhortation: “Call candidate X and tell her she’s wrong about Y.” Disclosure is skirted when the ads don’t literally tell viewers how to vote.

This loophole doesn’t apply to super-PACs, which disclose just about everything. It does apply, however, to 501c4 groups — the tax-exempt organizations that don’t say who donated to them, either. (In fairness, some are open about their budgets and spending. Others, not so much.)

2. Specifically, the convention dates matter. For those “issue ads,” outside groups only have to notify the Federal Election Commission about them if they air close enough to a primary (30 days), general election (60 days), or convention (30 days) — the spirit of the law being that, even if an ad doesn’t direct voters, it can influence an election regardless just by mentioning a candidate in a favorable or unfavorable light, if it airs close enough to an election, and should thus be reported.

3. Last election, there was a big disclosure gap in the spring. Here’s how it worked in 2012:

If a Democratic group wanted to attack Mitt Romney in Ohio, for instance, it could wait until after the March 4 Ohio GOP primary, then air “issue ads” without disclosing them for nearly four months … until July 28, 30 days before the Aug. 27 Republican National Convention in Tampa, when it would have to start telling the FEC about any ads it was running anywhere in the U.S. that mentioned Romney.

After the convention, it could stop disclosing again for a few days in early September … until Sept. 7, 60 days before Election Day.

Because of this disclosure gap, no one really has any idea how much money was spent on the election in 2012. Estimates don’t include money spent by 501c4s in late spring and early summer 2012, because that spending wasn’t disclosed.

4. In 2016, the gap will fall in July/August — when tons of ads are running. Here’s how it will work in 2016, if the conventions are held the last week of June:

If the Ohio GOP primary is held March 4, said fictitious Democratic attack group would stop disclosing its ads attacking Chris Christie (for example) for only two months … until the last week of May, 30 days before the GOP convention.

After the convention, it could start airing undisclosed ads again in July and August … until early Sept. 9, 60 days before Election Day.

5. Why this matters: So many ads in July/August! It’s not so much that groups will run more attack ads, campaign finance watchdogs expect; it’s that more of their attack ads, at a more critical time in the election season, will go undisclosed.

“It makes the general-election season longer, effectively, and that’s when you tend to have more ads,” said Trevor Potter, president and general counsel of the Campaign Legal Center.

Under slightly different rules in 2004, an earlier convention provided an opportunity for attack groups.

“This actually happened in 2004 when the Democratic convention was at the end of July,” explained Bob Biersack, former Federal Election Commission press officer and finance-rules guru, now of the Center for Responsive Politics. “In those days if a [501c4] was doing the spending, they would actually have to have stopped all together when the window opened 60 days before the general.”

Case in point: Swift Boat Veterans for Truth aired three ads attacking Kerry in August 2004.

By late summer, campaigns have usually heated up. If Republicans and Democrats didn’t have their 2016 candidates chosen (and ready to be attacked) by August, earlier conventions will ensure that they do. Campaign donations and attack ads pick up as the election year progresses — meaning less disclosure when spending is going up.

More broadly, disclosure matters because FEC reports are how the media keeps track of outside spending and reports on where it’s happening. While Ohio residents might see an ad constantly, they might not know what group is airing it unless they read or listen for a credit line at the end; and they might not know where else in the country that group is running ads. There’s a strategic advantage in nondisclosure, too. If you’re a big Republican 501c4 and you don’t have to report ads to the FEC, your Democratic adversaries are left to cajole ad vendors and TV stations for information about how much you’re spending and where, otherwise they don’t know how you’re deploying your resources across battleground states.

6. The weird thing about this is that Democrats don’t have to move their convention, just because Republicans have — and refusing to fall in line could conceivably benefit Democratic outside groups.

The Democratic National Committee is in the “preliminary stages” of discussing its rules and calendar for 2016, according to a DNC official, and there’s been no talk of moving the convention, as of yet.

If Democrats keep their convention in late August, Republican attack groups will have to abide by the old calendar and disclose their “issue ads” in July/August … unless they run positive ads that only mention the Republican candidate.

That’s because the looming Democratic convention would place them in the 30-day disclosure window for saying, for instance, “Hillary Clinton is wrong on health care.” To mention a Democratic candidate in August, 30 days before the Democratic convention, would likely still necessitate disclosure, experts agreed. Democratic groups, meanwhile, could attack the Republican presidential candidate — without disclosing — to their hearts’ content.

*The first of these things is probably true. The second depends heavily on sitting/reading pose. The third is either completely false or true by accident.

 

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