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June 06, 2014 12:47 PM “Help, Do Something” Cried the Campaign to the “Independent” PAC

By Ed Kilgore

The most hilarious incident so far in the very young runoff election in Mississippi was reported yesterday by National Journal’s Shane Goldmacher:

The message from Sal Russo, the chief strategist for the Tea Party Express, was breathless. “We just got off the phone with the McDaniel campaign,” Russo wrote in an email to the group’s supporters, “and they need our help!”
The problem: The Tea Party Express is an independent group that is promising to intervene in the Mississippi Republican runoff election between Senate candidate Chris McDaniel and Sen. Thad Cochran. As such, the group is not legally allowed to coordinate strategy with McDaniel, or his campaign.
“That would seem to be pretty clear coordination,” said Sheila Krumholz, executive director of the Center for Responsive Politics, a nonpartisan group that tracks campaign spending, of the Russo email.

Both the Tea Party Express and the McDaniel campaign (in an uncoordinated response, I’m sure) argue that the phone conversation in question didn’t violate campaign laws because it didn’t involve “coordination of expenditures”—i.e., some detailed conversation about who’s doing what where and how. So the implicit claim is that the McDaniel campaign just threw up a telephonic flare and literally said “Help!” without specifying the nature of that help. Presumably, they didn’t care whether the “independent” group ran TV ads, took some pictures of Rose Cochran, or bought every Mississippi registered voter a balloon with McDaniel’s visage etched on its surface.

Yeah, that’s credible.

Actually, even this defense might not hold water legally. According to an recent and extensive review of the “coordination” ban by Columbia Law School professor Richard Briffault, the term means “transmission of information between the candidate and the group with respect to the campaign’s strategies, messages, or needs [emphasis added]”. The obvious way for both parties to steer clear of this line is to stay off the phone with each other, and a cautious lawyer would probably advise them not to advertise their communications.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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