In an earlier post, I described how Sen. Claire McCaskill’s Politico oped shows how it is possible to get outside groups to follow your lead without breaking the coordination rules. The post was a response to a tweet by Rep. Justin Amash suggesting McCaskill engaged in illegal coordination.
A Post-Dispatch poll conducted July 23–25 showed Brunner leading the race at 33 percent, followed by Steelman at 27, and Akin at 17. But our polling showed the race was tightening, with Brunner still up by a point or two and Steelman solidly in third. Then, unexpectedly, the Akin camp took down one of his own ads that had been so effective. In it Mike Huckabee, the former governor of Arkansas and a leading voice in the conservative movement, endorsed Akin and explained his reasoning looking straight into the camera. It was powerful, but Akin’s camp replaced it with Akin talking about “flames of freedom.” What were they thinking? Akin didn’t have money for polling, but we had been tracking the numbers carefully and concluded that he’d be in trouble if he didn’t get the Huckabee ad back up.
On the Thursday before the election, I called Ron Gladney, the husband of Rep. Jo Ann Emerson, a Republican from Missouri. I asked him if he could get a message to the Akin camp to put the Huckabee ad back up. Of course Gladney started laughing and asked, “Are you kidding?” “No,” I replied. “If he gets the Huckabee ad back up by Friday, he’s going to win.” I also placed a call to Michael Kelley, a Democratic Party and labor operative who was friends with a former Akin staffer, and asked him to convey the same message to the Akin camp. A short time later my campaign manager, Adrianne Marsh, got a call from the Akin campaign. The person on the line wanted to talk to our pollster. Adrianne called me, and I gave clearance, allowing Kiley to speak in broad generalities. Three hours later the Huckabee ad was back up.
Rep. Amash contends this should count as illegal coordination, and I think this does raise a serious question about coordination. The Senator’s campaign was sending a message to the Akin campaign about what strategy to follow. I hope that Sen. McCaskill’s campaign can respond to questions about whether this communication crossed the line. If she does, I will post or link to the response.
UPDATE: Here are the rules on coordinated communications.
FURTHER UPDATE: I linked to the coordinated communications rules just before I had to step away from the computer for a few hours. Those rules might not apply to these facts (here’s Marc Elias arguing they don’t and Justin Amish arguing that they do). On reflection, I think the stronger issue is whether McCaskill made an unreported and excessive in kind contribution to the Akin campaign by sharing the results of her polling data. If she gave the campaign something worth more than the limit (which was probably $2600 in that election) she’d be giving an in-kind contribution, and a contribution worth that much would have to be reported.
Well did the Senator give Akin something of value? It looks like it. After all, we know it is valuable to him because the Senator writes “Akin did not have money for polling,” and she provided the information he needed to clinch the primary (at least in the Senator’s telling). Elias’s response to this point is: “There’s no suggestion she shared ‘polling data’. She only ‘gave clearance, allowing [pollster] to speak in broad generalities.” Perhaps that distinction will work, but I still think the issue is a serious one and merits a fuller analysis (and certainly fuller than I can give it now). I’m not suggesting the Senator broke the law, but there is enough here to justify a closer look.
I should add that there’s the potential to look not only at McCaskill’s campaign but also Akin’s campaign.
P.S. Motive does not matter. Here’s a case I worked on as a clerk in which one contributor made an excessive in kind donation in a California Senate race to a fringe candidate and claimed it was not illegal because he was doing it to help draw votes away from the Republican candidate to help the democratic candidate. He went to jail. Michael Goland v. FEC.