Some TPM Readers give

Some TPM Readers give their verdict on Ken Mehlman’s novel campaign finance law interpretation …

Anonymous TPM Reader A …

I’m somewhat of an election law expert, although I have not worked specifically on the regs dealing with independent expenditures. But it seems to me that Mehlman’s claim he cannot control the IEs of the RNC is just false. First, remember that the “independent” in IEs is independent *of the candidate*. That is what the FEC’s firewall guidance is supposed to protect. Now Mehlman may be somehow involved in coordinated expenditures with candidates, and he is almost certainly in communication with candidates and their campaigns on a regular basis. So he may be steering clear of discussing information that comes from candidates (“plans, projects, activities or needs”) with the IE operation of the RNC. But it’s a huge leap from that to say that he as the head of the party running the ads can’t instruct the IE operation to take an ad down. If he does that, he’s acting on behalf of the RNC, and he is not communicating material information from the candidate to the IE operation.

It’s one thing for a candidate to claim he has no control over a party’s ads. It’s quite another for the head of the party to make that claim. Please.

Anonymous TPM Reader B …

I’m no lawyer, but reading through the page you linked to, it strikes me that firewalls are supposed to prevent coordinated expenditures. No one is asking Mehlman to spend money on behalf of Corker, or to dictate how that funds are spent – we’re asking him to dictate how it is *not* to be spent. That sounds semantic, but I think it cuts to the heart of the matter. The law is designed to prevent the RNC from coordinating with candidates on how money gets spent, but I can’t imagine that it was intended to strip
organizations of the ability to set and enforce reasonable guidelines as to how their fund are not to be spent. (A thought experiment: A rogue operative puts up an RNC-funded ad that actually supports the Democratic candidate. Are we to believe the RNC couldn’t cancel it?)

But perhaps the real problem is that Mehlman is trying to have it both ways. He should pull the ad. But if the law really prevents him from stopping the ad, then he ought to be free to publicly condemn it, because his remarks carry no effective weight. It’s a simple choice, but Mehlman’s trying to weasel out of making it.

And finally TPM Reader MS …

The firewall excuse is a legal red herring. It makes no sense for a law to prohibit the chairperson of a party to not do something. Our entire system of law is built around someone having a duty, breaching that duty, and in the process harming an innocent party. If this were a civil case and the Democrats were suing for damages because of the ad, Mehlman seems to suggest that his defense would be that he had a duty to not collaborate, because breach of that duty would harm an innocent party, in this case, the opposing Democratic candidate. But how exactly is the Democratic candidate harmed by not running the ad? He isn’t. If Mehlman steps in and bars the ad from airing, he is, in a way, helping the opposition. And I guarantee that the firewall law wasn’t designed to stop the RNC from helping the DNC. Mehlman can probably hide behind this law long enough to get past Nov. 7, but he’s on shaky legal territory in a more theoretical sense.

Finally, at TPM Election Central, Greg Sargent interviewed Public Campaign’s David Donnelly for his view of Mehlman’s excuse.