WASHINGTON – As the Federal Election Commission drags its feet on new rules to address foreign interference, Take Back Action Fund and the Campaign Legal Center (CLC) today filed an advisory opinion request that will require the FEC to address gaps in online ad transparency requirements by the end of 2017.

TBAF is a conservative 501(c)(4) organization that plans to purchase ads targeting liberals during the 2018 election cycle on Facebook. Its advisory opinion request asks whether those ads need to include disclaimers, and notes that the capacity for digital ads to include disclaimers has changed significantly since the FEC’s last guidance on the issue in 2010.

By law, the FEC must respond to an Advisory Opinion Request within 60 days.

Years of inaction by the FEC have created ambiguity about when disclaimers stating who paid for a message are required for online political ads, and Russian nationals exploited this ambiguity to covertly circulate political ads on Facebook and other online platforms in 2015 and 2016.

The FEC may not write new online ad rules for quite some time. And legislation may not be enacted any time soon. But by using this advisory request mechanism, TBAF and CLC are invoking their legal right to ensure that the FEC timely address the issue of disclaimers for online political ads.

“It is time for the FEC to join the 21st century and end the confusion over online election ads,” said Adav Noti, senior director, trial litigation and strategy at CLC, who previously served as the FEC’s Associate General Counsel for Policy. “This advisory opinion request legally requires the FEC to clarify whether election ads on Facebook must include a statement disclosing who paid for the ad. Because social media companies have proven that they are unable or unwilling to self-police, the FEC must act.  This advisory opinion will provide for election-ad disclaimers so voters, journalists, watchdog groups, and law enforcement have some of the tools they need to root out illegal foreign activity.”

"I am filing this request with the FEC because I am dead set against the ridiculous lack of transparency in politics that invites countries like Russia to secretly run political ads, but if the FEC is going to allow this abuse then Take Back Action Fund plans to play by the same rules and run advertisements without disclosures," said John Pudner, President of Take Back Action Fund. "My hope is rather that the FEC will break their log jam to at least stop the one thing almost all Americans agree on - that it is our job to safe guard our elections against foreign infiltration."

Digital advertising accounts for a large and growing portion of election-related ads, including $1.4 billion in spending in the 2016 cycle alone. CLC supports the bipartisan legislative disclosure solution — the Honest Ads Act — that was introduced in both the Senate and House on October 19, but until that bill is enacted, the FEC must clarify the requirements for online ad disclaimers.

This afternoon at the daily White House press briefing, White House Press Secretary Sarah Sanders misstated current law when insinuating that the DNC and Hillary Clinton acted illegally in paying for opposition research into the Trump campaign, while the Trump campaign merely “took a meeting.”  

Adav Noti, CLC’s senior director of trial litigation, explains the distinction in the law, which Sanders has misrepresented:

“Opposition research is a central element of modern political campaigning. Candidates from both parties legally pay millions of dollars every cycle for opposition research. However, if a campaign solicits or accepts opposition research without paying for it, the value of that research constitutes a solicitation for, or an in-kind contribution to, the campaign.”

According to available information, the Clinton campaign paid for opposition research into the Trump campaign, which reportedly resulted in the so-called Steele Dossier. That is legal – although the campaign’s failure to report those payments may be illegal. Campaigns may legally pay foreign nationals to provide services to their campaign.

The difference is Trump campaign solicited opposition research from Russia without paying for it. We now know that the Trump campaign learned in April 2016 that Russia had “dirt” on Hillary Clinton in the form of “thousands of emails,” and in June 2016 Trump Jr. agreed to a meeting with a Russian government lawyer with the apparent expectation that this research would be turned over. The solicitation of that opposition research was illegal. Foreign nationals are prohibited from giving a contribution to a campaign; in the form of money, or in the form of an “in-kind contribution” like services or information. Just as it’s illegal for a foreign national to give a $100,000 check as a contribution to a politician, it is also illegal for a foreign national to give $100,000 worth of free services as a contribution to the politician.

The Campaign Legal Center, a nonpartisan watchdog, filed complaints with the Federal Election Commission to investigate both the DNC and Clinton for failing to properly disclose these payments for opposition research, as well as the Trump campaign for illegally soliciting a contribution from a foreign national. 

Today, Campaign Legal Center (CLC) filed a complaint with the Federal Election Commission (FEC) alleging Secretary of the Interior Ryan Zinke violated campaign finance law by failing to report tens of thousands of dollars of contributions received and for using campaign funds for the personal benefit of himself and his family.

Zinke failed to report the identity of multiple individuals who contributed thousands of dollars to his campaign through a joint fundraising committee, potentially concealing contributions in excess of federal limits.

Additionally, several transactions indicate Zinke converted campaign funds to personal use. For example, in April 2016 the Zinke campaign bought a motorhome from Zinke’s wife for $59,100, spent thousands of dollars maintaining the vehicle, then sold it in July 2017 to a friend for just $25,000. If the campaign paid Zinke’s wife above market rate for the vehicle, or sold it to Zinke’s friend below market rate, then it illegally converted funds to personal use. Other transactions, such as a hotel stay in the U.S. Virgin Islands and a five-star hotel in New York City, were misreported on Zinke’s FEC reports and may raise additional questions about personal use.

“A campaign’s most basic legal obligation is to publicly disclose its major donors, so the Zinke campaign’s failure to provide that information is very concerning,” said Adav Noti, senior director, trial litigation and strategy at CLC, who previously served as the FEC’s Associate General Counsel for Policy. “And selling a major campaign asset to the candidate’s friend at half price is inherently suspect. The FEC must enforce the longstanding ban on using campaign money for personal benefits.”

“The Zinke campaign failed to disclose thousands in contributions, misreported thousands of dollars in spending, and may have misused campaign funds,” said Brendan Fischer, director, federal and FEC reform at CLC. “The public has a right to know who is funding a candidate and how a candidate is spending that money, but Zinke has disregarded even these basic accountability requirements.”

WASHINGTON – Today, Campaign Legal Center (CLC) filed a complaint with the Federal Election Commission (FEC) alleging former Congressman Cliff Stearns (FL-06) has illegally converted leftover campaign funds to personal use, in violation of the prohibition against current and former candidates misusing campaign funds. Potentially illegal expenditures include his monthly cellphone bill, payments to his wife, membership dues at private Washington D.C. clubs, and expenses apparently related to his private sector lobbying career. Stearns represented Florida’s 6th congressional district until 2013, and joined the lobbying firm APCO Worldwide immediately after leaving office.

After a Member of Congress leaves office, they may legally donate leftover campaign funds to charity, transfer funds to their party, make contributions to other candidates, or pay for the costs of winding-down their campaign or closing their office.

“Former Members of Congress spending leftover campaign money as golden parachutes to subsidize their personal lifestyles is a serious misuse of contributions,” said Adav Noti, senior director, trial litigation and strategy at CLC, who previously served as the FEC’s Associate General Counsel for Policy. “The law bans elected officials from pocketing the campaign contributions they receive, and the FEC should strictly enforce that ban.”

“Campaign funds are not supposed to be used to enhance the lobbying career of a long-retired member,” said Brendan Fischer, director, federal and FEC reform at CLC. “By law, campaign contributions are to be used for a candidate’s run for office or one’s duties as an officeholder, not as a personal slush fund.”

Since leaving office in 2013, Stearns has used campaign funds to pay over $5,000 in cell phone bills, to pay his wife $5,000 this year alone, and to pay for thousands of dollars in gifts, framing services, conference fees, and other expenses that have no apparent connection to his former duties as an officeholder. Stearns has also paid for thousands of dollars in membership dues and meals at a private Republican club in Washington D.C., which he admitted are connected to his private sector lobbying duties.

Federal law states that campaign contributions are deemed “converted to personal use” if such funds are “used to fulfill any commitment, obligation or expense of a person that would exist irrespective of the candidate’s election campaign or individual’s duties as a holder of Federal office.”

Campaign, Democrats undermine voters right to know, FEC must investigate

WASHINGTON – Today, Campaign Legal Center (CLC) filed a complaint with the Federal Election Commission (FEC) alleging the Democratic National Committee (DNC) and Hillary Clinton’s 2016 campaign committee violated campaign finance law. They failed to accurately disclose the purpose and recipient of payments for the dossier of research alleging connections between then-candidate Donald Trump and Russia, effectively hiding these payments from public scrutiny, contrary to the requirements of federal law.

On October 24, The Washington Post revealed that the DNC and Hillary for America paid opposition research firm Fusion GPS to dig into Trump’s Russia ties, but routed the money through the law firm Perkins Coie and described the purpose as “legal services” on their FEC reports rather than research. By law, campaign and party committees must disclose the reason money is spent and its recipient.

“By filing misleading reports, the DNC and Clinton campaign undermined the vital public information role of campaign disclosures,” said Adav Noti, senior director, trial litigation and strategy at CLC, who previously served as the FEC’s Associate General Counsel for Policy. “Voters need campaign disclosure laws to be enforced so they can hold candidates accountable for how they raise and spend money. The FEC must investigate this apparent violation and take appropriate action.”

“Questions about who paid for this dossier are the subject of intense public interest, and this is precisely the information that FEC reports are supposed to provide,” said Brendan Fischer, director, federal and FEC reform at CLC. “Payments by a campaign or party committee to an opposition research firm are legal, as long as those payments are accurately disclosed. But describing payments for opposition research as ‘legal services’ is entirely misleading and subverts the reporting requirements.”

Read the complaint.

Larry Noble, senior director and general counsel at Campaign Legal Center (CLC) released the following statement responding to Twitter’s announcement that it plans to create a “transparency center” that will disclose information about political ads purchased on the platform:

“Twitter’s new transparency policy is a small step towards giving voters, journalists, watchdog groups, and law enforcement some of the tools they need to root out illegal foreign activity. While Twitter’s statement reflects a growing understanding of the serious problems arising from political ads coming from undisclosed foreign sources, we are still lacking needed specificity and uniformity regarding the nature of what will be disclosed.

Twitter’s announcement cannot help but draw attention to Facebook’s failures in this area. In contrast with Twitter’s announcement, there is a lack of clarity about how Facebook’s ambiguous policies will be defined and implemented. It has been six weeks since CLC sent a letter to Facebook, urging Chairman Mark Zuckerberg to provide the American people and appropriate investigators with more information regarding foreign entities spending money through fake accounts on Facebook ads. Facebook has neither released the necessary information nor coherently explained its reason for withholding it.

The fact that Twitter appears to be taking a more pro-active approach, while Facebook continues to resist, shows we cannot expect social media companies to hold themselves accountable and self-police their platforms. Legislative solutions are necessary to fill the transparency gaps Russian actors exploited in attempting to influence the 2016 presidential election. We hope that Twitter’s stated willingness to engage in the legislative process surrounding the Honest Ads Act indicates it is open to legislation addressing this important issue that applies equally to all large online platforms.”

Read CLC’s statement on the bipartisan bills in the House and Senate which would give tools to fight foreign interference through online ads in future elections.

On Sept. 12, 2017, CLC sent a letter to Facebook, urging Chairman Mark Zuckerberg to provide the American people and appropriate investigators with more information regarding foreign entities spending money through fake accounts on Facebook ads. 

WASHINGTON – Today, the U.S. Court of Appeals for the Ninth Circuit issued a decision finding that Montana’s base campaign contribution limits are constitutional, reversing a 2015 decision made by a federal district court. The case is about the state’s limits on the amount of money individuals, political action committees and political parties are permitted to contribute to candidates for state elective office. Montana voters originally approved the contribution limits by ballot initiative back in 1994.

“This decision protects the viability of contribution limits nationwide," Tara Malloy, senior director, appellate litigation and strategy at Campaign Legal Center (CLC) "The prospect that large, unlimited contributions could be given to candidates for political favors should be self-evident. This is a good decision by the Ninth Circuit in a challenging environment for campaign finance laws nationally.”

The appeals court held that Montana has a valid interest in preventing pay-to-play activity tied to large campaign contributions, and that its contribution limits are a “closely drawn” way to achieve that goal. The courts have long recognized the constitutionality of campaign contribution limits. This lawsuit is part of a continuing legal strategy to undermine all campaign finance laws, which CLC has been fighting on multiple fronts. CLC filed a brief with the Ninth Circuit in October 2016 urging reversal of the lower court’s decision, and had previously filed a brief in 2014 when the case was first up on appeal.

Learn more about the case Lair v. Motl.

Bills address glaring gaps in election law exposed by Russia’s interference in 2016 election

WASHINGTON – Today, Senators Amy Klobuchar (D-MN), Mark Warner (D-VA) and John McCain (R-AZ) announced they are introducing the Honest Ads Act. The House is also introducing a bipartisan companion bill. These Acts are a forceful and timely response to the most pressing vulnerabilities of election law exposed by Russia’s cyber campaign in the 2016 presidential election. Campaign Legal Center (CLC) advised the offices of the Senators who are sponsoring this important legislation.

HONEST stands for “Holding Online National Electioneering ads to the Same Test.” Its purpose is to modernize the laws surrounding the ban on foreign election interference by ensuring that paid internet ads are subject to the same disclaimer and recordkeeping rules that currently apply to television ads and radio ads. If enacted, this bill would require major sellers of online advertising – like Google, Facebook and Twitter – to keep a publicly available database of significant political advertising, including the content of the ads and who paid for them.

“The 2016 elections exposed glaring holes in our ability to police foreign intervention in US elections, and these bills are an appropriate, bipartisan disclosure remedy,” said Trevor Potter, president of Campaign Legal Center (CLC), and a former Republican Chairman of the Federal Election Commission. “Voters have a right to be fully informed about who is trying to influence their vote, particularly foreign powers whose motives are contrary to American interests. The Honest Ads Act gives voters, journalists, and law enforcement officers important tools to help root out illegal foreign activity. The transparency this bill aims to provide in the 2018 elections and beyond will protect and enhance the integrity of our elections, which are the most fundamental component of American self-governance.”

“Political activity is increasingly moving online, so this bill is a necessary step to bring our election laws into the 21st century and safeguard against anonymous foreign interference,” said Adav Noti, senior director of trial litigation at CLC, who previously served as the FEC’s Associate General Counsel for Policy. “The FEC has failed to provide meaningful guidance as to how its 1970s-era rules apply to modern digital advertising. Congress should pass the Honest Ads Act to make sure that major sellers of online ads aren’t selling them to foreign interlopers, and to create strong disincentives against foreign actors targeting American voters with election-related messages.”

The introduction of the Honest Ads Act comes one week after CLC’s foreign interference event on Oct. 12, which brought together national security, cybersecurity, and campaign finance law experts to examine the vulnerabilities of our laws and discuss solutions about how to protect our democracy against foreign influence.