The Federal Election Commission voted along party lines to drop an enforcement complaint alleging the National Republican Congressional Committee’s spending of $465,161 to air a television ad in a 2016 congressional race was an illegal campaign contribution.
The ad aired in the race for a U.S. House seat from California narrowly won by Rep. Ami Bera (D), according to FEC documents released Nov. 22. The NRCC ad supported Bera’s Republican opponent, Scott Jones, and contained B-roll video footage that Jones’s campaign committee had posted on YouTube.
A staff report from the FEC’s general counsel office concluded spending for the NRCC ad was “republication” of Jones’s campaign materials, which would be an in-kind campaign contribution. The amount spent on the ad far exceeded limits on what the party committee was allowed to contribute to Jones under FEC rules.
Two commissioners holding Democratic seats on FEC voted for the recommendation of the counsel’s report to pursue the case, designated Matter Under Review (MUR) 7185. One Democratic seat on the FEC is vacant.
The three Republican commissioners opposed the staff recommendation.
The FEC counsel’s report said there was no evidence the Jones campaign gave the video footage to the NRCC directly or otherwise illegally coordinated with the party committee to create the ad. The report recommended the FEC find “no reason to believe” an allegation of illegal coordination between the campaign and the NRCC.
The FEC has deadlocked in several previous enforcement matters on whether an outside group’s use of video footage produced by a candidate’s campaign constitutes an illegal campaign contribution. The practice was used in numerous congressional campaigns in 2012 and 2014 and continued through 2016.
FEC Republicans and Democrats split in a series of votes on enforcement matters involving use of campaign video by super political action committees and other groups supporting both Democratic and Republican House and Senate candidates.
In one highly publicized example, the campaign of Senate Majority Leader Mitch McConnell (R-Ky.) posted a wordless video of McConnell on the internet in an apparent effort to allow outside groups to use the footage for campaign commercials.
In a statement of reasons explaining their votes in late 2015, the FEC’s three Republican commissioners said that triggering legal provisions on republication of campaign materials “requires more than respondents creating and paying for advertisements that incorporate as background footage brief segments of video footage posted on publicly accessible websites.” The statement was signed by Commissioners Lee Goodman, Caroline Hunter and Matthew Petersen.
In the latest case, according to the FEC counsel’s report, the NRCC’s 30-second ad aired in the Bera-Jones race included 16 or 17 seconds of the campaign’s B-roll video of Jones—then a local sheriff—in uniform talking to police officers, and dressed casually walking and talking with his family, with a voiceover describing Jones as a “strong and effective leader.” The ad sought to portray Jones as a law-and-order candidate and to contrast him with Bera, who was involved in a campaign finance scandal.
The ad was titled “Dirty Money” and discussed Bera’s father’s guilty plea and imprisonment for reimbursing contributions to Bera’s 2010 and 2012 campaigns. Part of the ad portrayed Bera and the U.S. Capitol with a shadowed person behind prison bars.
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