The House State Agencies committee this morning rejected a bill by Rep. Clarke Tucker (D-Little Rock) that aimed to prevent collusion between candidates for public office and independent organizations that buy advertising on their behalf.
According to Tucker, Arkansas may be the only state in the nation that permits such coordination between candidates and outside groups. However, after the committee heard testimony against House Bill 1005 from a representative of a conservative independent organization, Americans for Prosperity, it failed on a voice vote.
Tucker had amended House Bill 1005 after a previous version of the bill was rejected by the committee last week. As originally written, HB 1005 would have required disclosure of “electioneering communications,” meaning advertisements made by organizations during election season that are clearly meant to help or harm a candidate but state dodge campaign finance laws on a technicality. That technicality is “express advocacy”: If an ad doesn’t use certain words, such as “vote for” or “cast your ballot for” or “vote against,” it’s not considered a political ad and therefore avoids disclosure. Groups such as politically oriented 501(c)(4) organizations use that to their advantage, buying enormous amounts of advertisements to support candidates without running into the contribution limits on campaigns. Americans for Prosperity is a 501(c)(4) founded by Charles and David Koch, the billionaire industrialists and conservative activists.
As Tucker put it today, if such an organization runs an ad saying “vote for Clarke Tucker” it would be required to disclose its spending, but “if the ad says ‘Please call Clarke Tucker and tell him what a great candidate there is,'” it is not required to do so.
Tucker’s scaled-back version of HB 1005 abandoned the disclosure requirement and instead tried for a more modest goal of stopping such groups from coordinating their activities directly with the candidates they assist. This issue came to light in the 2014 race for attorney general, when Republican candidate Leslie Rutledge actually appeared in a TV advertisement purchased by an out-of-state political group, the Republican Attorney Generals Association. Although the $300,000 ad featured Rutledge herself, she didn’t explicitly tell people to vote for her, and so the group’s enormous financial boost to her campaign was not technically considered “coordinated” by the Arkansas Ethics Commission. (Rutledge won the election.)
HB 1005 would have expanded the definition of what is considered a political ad to include commercials that “refer to a clearly identified candidate … that [are] targeted to the relevant electorate for that candidate, and for which the only reasonable interpretation of the advertisement … is an attempt to influence a vote for or against a specific candidate or specific set of candidates.” Tucker said that the amended bill wouldn’t require disclosure of all such communications. It wouldn’t even prohibit coordination, he said: “It just describes it as an in-kind contribution to a campaign.”
David Ray, the director of the Arkansas chapter of Americans for Prosperity, testified against the bill. Ray said HB 1005 “would create an overly broad definition of political advertisements” and could prevent nonprofits from educating the public or criticizing elected officials. He objected to language that would allow the ethics commission to make a determination about whether an ad was indeed political. “It unnecessarily empowers the commission to further regulate speech,” Ray said. He worried that creating such a law restricting coordination could pave the way for eventually requiring disclosure of other outside spending, as Tucker originally tried to do. “In essence, we view this as one part of a two-step plan,” he said.
In closing for the bill, Tucker noted again that Arkansas was an outlier in essentially allowing wholesale collusion between candidates and outside groups purchasing advertisements on their behalf. “We’re virtually the only state left that doesn’t catch those ads ,” he said. He replied to Ray’s point about restricting educational activities. If someone ran an ad during the legislative session — 18 months before any election — that thanked a legislator for voting for or against a bill, he said, one could reasonably interpret that ad as being unrelated to an election. If it’s ran the day before Election Day, however, that would be a different matter. Plus, he noted, “you have to identify a candidate in the ad, or it doesn’t kick in at all.”
“This is as narrow as it can be to catch this type of coordination,” Tucker said.