While using money to influence politicians is becoming increasingly blatant following the US Supreme Court’s Citizens United and McCutcheon rulings, there are still a few fig leaves that exist. One is that there should be no coordination between political campaigns and the SuperPACs that support them. Stephen Colbert, Jon Stewart, and Colbert’s lawyer Trevor Potter had a brilliant series during the 2012 elections showing how easy it was, using nods and winks, for politicians get around SuperPAC restrictions.
But that still leaves a problem in that the SuperPACs need to use video of their candidate to appear in their ads without the candidate actually posing for them. They could follow the candidate around and film but those videos are not as polished as studio productions.
So now we have the strange phenomenon of candidates making films of themselves that have no audio whatsoever but high production values, doing things like meeting with people, gazing pensively, working hard, but mainly just looking good. These strange silent videos are then uploaded to the web for anyone to use. Then SuperPACs can download them, take whatever bits they want, cut and paste and add voiceovers, and there you are: a polished political commercial featuring the candidate that was produced ‘independently’ of the candidate.
Paul Blumenthal provides more detail on what is going on and says that nine candidates have so far uploaded this type of B-roll film and ads using them have already appeared. Of course, others can also use the videos to make fun of the candidate, which is what Jon Stewart did with his McConnelling bit.
Is this practice legal? Blumenthal discusses this.
Campaign finance watchdogs Democracy 21 and Campaign Legal Center sent a letter to the McConnell campaign and the Kentucky Opportunity Coalition pointing out that the republication of a campaign’s materials by an independent group generally violates federal election law and may also violate prohibitions on coordination between candidates and independent groups.
Election law does grant limited exemptions from the republication ban to use campaign materials in news, editorials or commentary and to provide a “brief quote of materials that demonstrate a candidate’s position.” Those using the questionable b-roll footage tend to point to the brief-quote loophole and the FEC’s failure to clarify it.
[Paul] Ryan of the Campaign Legal Center said those arguments shouldn’t hold up. The use of b-roll footage cannot be categorized as “brief,” he said, when it constitutes 30 percent to 40 percent of the ad in question — as it does with several of the spots in question.
Such concerns about legality are becoming increasingly quaint in the farce that US elections have become, where money reigns supreme.