On October 31, the Republican Party of Minnesota filed a complaint with the Minnesota Campaign Finance Board (CFB) against the Minnesota DFL and the Mark Dayton for Minnesota gubernatorial campaign, alleging improper coordination of television ads reported as independent expenditures.
Minnesota law defines an independent expenditure as “expressly advocating the election or defeat of a clearly identified candidate...without the express or implied consent, authorization or cooperation of, and not in concert with or at the request or suggestion of any candidate or any candidate’s principle campaign committee or agent.”
CFB Executive Director Gary Goldsmith says Minnesota law prohibits him from confirming or denying that the Board is investigating such a complaint.
Speaking in general terms, Goldsmith emphasized that the Board has interpreted the law governing independent expenditures differently than their counterparts at the Federal Election Commission (FEC).
“Coordination” does not appear in either federal or state statutes governing independent expenditures, but the FEC has introduced a standard for determining coordination. In contrast, CFB rulings have centered on the narrower issue of “cooperation.”
“The FEC has made rulings that weaken the law,” says Goldsmith,” but the Board takes the statute as written. So, in Minnesota, campaigns can do far less with third parties than allowed under federal law.”
These differing standards lie at the heart of the Republican allegations, which both the DFL and Dayton deny.
The FEC’s test of “coordination” created a Grand Canyon-sized loophole that allows campaigns and third-party groups to cooperate to such an extent that the federal law is extremely difficult to enforce.
Posting film footage in a public forum is one way campaigns provide third-party groups with clips for “independent expenditure” television ads. These B-rolls of raw footage of the candidate occasionally feature music, but typically have no audio. The advantage of making them available is to allow the “independent expenditure” ads to echo the candidate’s talking points.
On July 18, the Dayton campaign published a B-roll on YouTube, titled “On the Campaign Trail.” It featured in Dayton’s television ads. The Minnesota DFL used some of this footage in their independent expenditure ad, “We Know,” published on YouTube September 15 and aired on Minnesota television stations.
Sharing B-roll footage for use in independent expenditures is legal in federal races because of the FEC-created loophole, but the question is whether such sharing is legal in state races or if it is an “approved expenditure.”
Minnesota law defines approved expenditures as:
made on behalf of a candidate by an entity other than the principle campaign committee of the candidate, if the expenditure is made with the authorization or expressed or implied consent of, or in cooperation or in concert with, or at the request or suggestion of the candidate, the candidate’s principle campaign committee, or the candidate’s agent. An approved expenditure is a contribution to that candidate.
The argument that the DFL ads were an approved expenditure relies heavily on a 2002 decision by the CFB on a complaint filed by the Independence Party against the Republicans and Tim Pawlenty. In that case, the CFB found evidence of cooperation and ruled that the ads were approved expenditures.
“Every case depends on exact facts,” says Goldsmith. “Simply posting pictures or video in a public forum is not sufficient to violate state law. There must be evidence of cooperation.”
Goldsmith points to Board rulings in similar cases in 2012 and 2014. The CFB dismissed a complaint against the DFL House Caucus and candidates because it found no evidence of cooperation, but slapped the DFL Senate Caucus with a $100,000 fine because it found clear evidence of cooperation.
The CFB’s focus on interpreting the statutes as written could mean Dayton and the DFL are on shaky ground, since the only reason to post a B-roll is to provide third-party groups with film footage for ads.
The complaint also raises the issue of whether granting rights for the DFL to use the Dayton footage would constitute “expressed or implied consent”:
If the participants in the video did indeed sign releases allowing their likenesses to be used, were those releases granted to the Dayton Campaign, the DFL Party, or both? If not to both, why would the DFL Party simply assume it could use the footage to which it was not granted the rights?
Goldsmith says the CFB has not previously heard a case dealing with B-roll videos, so this is new territory. If the Board rules that the DFL ads were approved expenditures, the amount spent on producing and airing them would then be an in-kind contribution to the Dayton campaign. Aggregate contributions from party units to candidates for governor are capped at $40,000.
DFL Party reports filed with the CFB document two independent expenditures for television advertising opposing Jeff Johnson, but according to Canal Partners Media, the September payments totaling $998,650 are for ad buys only. The party reported no independent expenditure for production of the television ad.
A member of Investigative Reporters and Editors, Shelly Mategko is a trade unionist, former lobbyist, and a political activist from 1974 to 2010, with expertise in campaign finance and communications strategy.