Why It’s So Hard To Bust GOPers For Twitter Election Code Scheme

Shutterstock/Julia Tim
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Something of a news bombshell broke on Monday when CNN’s Chris Moody reported that Republicans seemed to have found a trick to get around election law: posting internal polls on publicly accessible Twitter accounts that could only be deciphered if you really knew what the collection of numbers meant. But many experts say as flagrantly as this may be flouting the spirit of the law, it’s near-impossible to take those responsible for the scheme to task under the new era of election law.

The core of the CNN story is that there were Twitter accounts “hidden in plain sight” that offered internal polling numbers directed at super PACs and outside groups. Election law prohibits outside groups like super PACs and non-profits from coordinating directly with the campaigns they support. That includes the two super PACs and campaigns directly sharing internal pols, which could be seen as marching orders from the campaign to the super PAC, for example.

The tweets from the Twitter accounts was polling data set up in a way that would come off as nonsensical unless someone knew what they were looking for. One tweet, from the now-defunct Twitter accounts, according to CNN, said “CA-40/43-44/49-44/44-50/36-44/49-10/16/14-52–>49/476-10s.” Both super PACs and a Republican committee followed the accounts — the National Republican Congressional Committee and the Karl Rove-aligned American Crossroads super PAC. But there are still unanswered questions that would really pin this episode down as a clear breach of election law.

Joseph M. Birkenstock, a lawyer for Sandler Reiff Lamb Rosenstein & Birkenstock P.C. who previously served as the chief counsel for the Democratic National Committee, said couldn’t quite say that the tweets were “clearly illegal” but added “no way would I advise a client to distribute polling information this way, or use polling info they got this way.”

“The FEC has established protections around information obtained from a “publicly available source,” but judging by the character-salad tweets I’ve seen, *the information* actually conveyed in those tweets really isn’t public,” Birkenstock told TPM via email. What’s missing is the “decoder ring” used to decipher the gibberish cluster of numbers, Birkenstock said.

“So in other words, unless the decoder ring is publicly available too, I’m not at all convinced the tweets I’ve seen would count as a ‘publicly available source’ even if you put them on a billboard in Times Square,” Birkenstock continued.

Birkenstock’s response was similar to the other election law experts reached by TPM on the story. They all said that what’s missing was a clear sign that there was coordination around these Twitter accounts.

“If it’s known in certain circles that information will be posted on a certain Twitter account then that’s not enough, I mean you have to have some sort of agreement that ‘We are literally going to coordinate our efforts basically through this account,'” Stanford Law School professor Nathan Persily told TPM.

Beyond that though, there are other questions surrounding the Twitter and who benefited from them, attorney Chris Ashby, a Republican lawyer who’s worked as a senior staff member for then-Virginia Del. Robert F. McDonnell (R) said.

“Even if some secret discussion preceded these tweets, even if someone had a cipher to unlock their secret meaning, there are several other questions you’d have to know the answers to before you could conclude that this constitutes coordination under the law,” Ashby said.

Ashby ticked off a list of unknowns about the Tweets. If the numbers are top line polling data, Ashby said, it would be “relatively useless, or detailed cross-tabs or multi-variate analysis information, which might be more worthwhile?”

“Second, was this information even used by the outside groups to create independent expenditures, or were they perhaps just checking to see if their polling was tracking with others’ polling?” Ashby said. “Third, even if the information was used, was it material to the creation, production or distribution of the independent expenditures? And fourth, even if this information was material and was actually used, was it ‘publicly available’? Because if it was, then there’s no coordination under the law.”

The Twitter accounts allegedly used were rather obscure and the tweets were even harder to decipher for someone who isn’t closely synced with the campaigns, but that doesn’t prove that there was some kind of coordination.

“I’m not sure ‘public’ has to mean ‘completely free of pre-arrangement,’ but I think it definitely needs to mean ‘actually available to the public,’ as opposed to some subset of the public that happens to know how to read the private Dothraki dialect you and your allies came up with over beers one night,” Birkenstock added.

There have been other instances over the last year of campaigns seeming to get very close to crossing the line toward coordinating with outside groups. Footage of Sen. Mitch McConnell (R-KY) smiling into the camera in several different poses seemed meant for outside groups that supported McConnell’s election strategy. Republicans also also pointed to an accusation by the National Republican Senatorial Committee highlighted by Breitbart’s Debra Heine where an attack first appeared on a candidate’s website then was soon followed by a commercial from Sen. Harry Reid’s (D-NV) political action committee.

Further complicating everything is the trouble the Federal Elections Commission has had dealing with murky and possibly illegal coordination episodes that centered around the internet. After Moody’s story was published on Monday FEC vice-chair Ann Ravel told CNN that her commission could address how social media is being used to share campaign information but Ravel admitted that these things get murky when it comes to the internet.

Persily noted that the FEC has had “great difficulty regulating anything on the internet.”

“Everyone knows that if you call someone up on the phone and you coordinate that that would potentially violate the rules. Similarly if you send an email to someone to a private email with messages that clearly indicate coordination,” Persily said.

The fact that the information was moved over Twitter “at the interstices of private communications and public broadcast” is that’s what makes this scheme different, Persily said.

Photo: Shutterstock/Julia Tim

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