Friday, January 30, 2015

Arkansas Ethics: When an election ad is not an election ad

Posted By on Fri, Jan 30, 2015 at 6:32 AM

NO FOUL: Ethics Commission during deliberation of complaint over ads supporting Leslie Rutledge's election. - FOX 16
  • Fox 16
  • NO FOUL: Ethics Commission during deliberation of complaint over ads supporting Leslie Rutledge's election.

I've already lamented the Arkansas Ethics Commission's decision that $300,000 or more in TV ad spending featuring Leslie Rutledge, a candidate for attorney general, was not sufficiently explicit to be viewed as a campaign contribution.

Ethics Commission Director Graham Sloan did say to me in casual conversation that he could see how a "lay person" might interpret spending by a Republican political group on ads featuring Rutledge an ad meant to help elect her.

Who else are ads directed at, but "lay persons"? Voters in other words.

Little Rock lawyer Matt Campbell, who filed the complain, received the formal notification of the 4-0 vote to dismiss his complaint. It sets out in detail the reasoning by which the Commission exonerate Rutledges admitted coordination with the Republican group on the ad. It gives you no hope for greater Ethics Commission oversight of ethics laws in Arkansas under Amendment 94.

The ad did not pass the plain sight test. With ample room in changing U.S. Supreme Court law to to declare a quacking duck a duck, the Ethics Commission declined to do so. In the process, it opened the door for more of this sham by outside groups for favored candidates.

Campbell summarized the outcome on Facebook last night:

Got the decision letter from the Arkansas Ethics Commission this afternoon. Apparently, the commissioners felt that *someone* could see an ad where Leslie Rutledge, identified as a candidate for AG, talks about what she would do if elected AG, then tells people to call a number owned by her AG campaign, as something other than an ad encouraging people to vote for her for the office of AG.

No, seriously. That was their "reasoning."

Rutledge and the group whose dark money backed her merely argued that this was protected 1st Amendment expression. Campaign contribution limits and other efforts to promote transparency in elections are rapidly falling under Citizens United and citizens commissions afraid to say what their own eyes should tell them. Rutledge got $300,000 in a direct TV ad buy featuring her. The limits on giving are $2,000. We don't even know who gave the $300,000. The Ethics Commission said this is perfectly fine.

Be afraid of what's to come.

Here's the full opinion.

Discussion on Campbell's Facebook mentions a slim possibility of judicial review. A better course of action is to fix the law. That would seem unlikey at a Republican legislature, because it would seem a repudiation of tactics of a Republican candidate. But as Rutledge's lawyer, Kevin Crass noted, this similar tactic has been used in other states by Democratic candidates backed by dark money groups. Good government is not always a partisan exercise. It's just good government. If the "Ethics" Commission can't do it, maybe the people can.

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