[EL] Alleged NRA Coordination

Mon Sep 17 13:52:57 PDT 2018

Our just-filed FEC complaint regarding these coordinated communications can be found here<https://campaignlegal.org/sites/default/files/2018-09/CLC%20Complaint%20to%20FEC%20Against%20Rosendale%20%2B%20NRA.pdf>.  As the complaint points out:

Montana U.S. Senate candidate Matt Rosendale stated at a fundraising event that the NRA-ILA's political director, Chris Cox, had told him that the group would be making expenditures supporting Rosendale, and Rosendale accurately described both the content of the NRA-ILA's communications and their timing, even though the communications had not yet been disseminated and would not be disseminated until weeks later. Rosendale's statements provide reason to believe that he assented to the NRA-ILA's planned spending.

The "conduct standard" of the [FEC's coordinated communications] regulation is satisfied if a communication "is created, produced, or distributed at the suggestion of a person paying for the communication and the candidate . . . assents to the suggestion." Id. § 109.21(d)(1)(ii).  The candidate's assent satisfies the conduct standard "whether or not there is agreement or formal collaboration." 11 C.F.R. § 109.21(d); see also 11 C.F.R. § 109.21(e) ("Agreement or formal collaboration between the [payor] and the [candidate] is not required for a communication to be a coordinated communication."); BCRA § 214(c), 116 Stat. 95 ("[FEC] regulations shall not require agreement or formal collaboration to establish coordination."). As the Commission has noted, section 109.21(d)(1)(ii) "is intended to prevent circumvention of the statutory 'request or suggestion' test . . . by, for example, the expedient of implicit understandings without a formal request or suggestion." Coordinated and Independent Expenditures, 68 Fed. Reg. at 432; McConnell v. FEC, 540 U.S. 93, 222 (2003) ("[FECA] permits a finding of coordination or cooperation notwithstanding the absence of a pre-existing agreement.").

At a July 2018 event in Washington D.C., Rosendale was asked whether "outside groups [have] started spending on your behalf," and he replied by stating, "outside groups have already started to come in," and named the Club for Growth, which reported spending six figures on independent expenditures supporting Rosendale in June and July of 2018, and then stated, "I fully expect that the NRA is going to come in" and spend money in the race, "probably, right here, in August sometime."  Rosendale further stated that "the Supreme Court confirmations are big-that's what sent the NRA over the line," and that the NRA-ILA's "Chris Cox told me-he was like 'well, we're gonna be in this race.'"

In early September, in the middle of confirmation hearings for Supreme Court nominee Brett Kavanaugh, the NRA-ILA spent $404,496 on television advertisements expressly advocating against Rosendale's opponent, Jon Tester, with the communications criticizing Tester for his votes on Supreme Court nominees.

The evidence indicates that the NRA-ILA's political director told Rosendale that his group would be creating, producing, and distributing communications supporting Rosendale; apparently described the focus of the ads (the Supreme Court); and also described the approximate timing (August, although the ads were ultimately run in the first week of September).  Rosendale's favorable reference to this planned activity on his behalf in response to a question about spending by "outside groups" provides reason to believe that Rosendale assented to Cox's plan. This satisfies the "request or suggestion" conduct standard at 11 C.F.R. § 109.21(d)(1)(ii).

Adav Noti
Senior Director, Trial Litigation & Chief of Staff
Campaign Legal Center
1411 K St. NW, Washington, DC 20005
202.736.2203 | @AdavNoti<https://twitter.com/AdavNoti>
anoti at campaignlegalcenter.org<mailto:anoti at campaignlegalcenter.org>

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From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Friday, September 14, 2018 10:24 AM
To: Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <law-election at uci.edu>
Subject: [EL] Alleged NRA Coordination

This is the stupidest argument I've seen on campaign finance this cycle. I literally laughed out loud when I was first told about it. Although the bribery argument against the Maine Political Alliance is a pretty tough competitor.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Law-election [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Friday, September 14, 2018 10:12 AM
To: Election Law Listserv
Subject: [EL] ELB News and Commentary 9/14/18

"Exclusive: Audio Reveals Potentially Illegal Coordination Between NRA and Montana Senate Hopeful Matt Rosendale"<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d101146&c=E,1,1lm0elq81J1_MjtWJ0cvQvn6YfoN4T1NWZFfkpX-47X6eKl9EFFjpxXN05ifcgjCALM3vKSQ4cZwAI_JHUnaFDx9YUDOU8HI3FFneKTu&typo=1>
Posted on September 13, 2018 10:20 am<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d101146&c=E,1,K90RinjdqAMbr9ApvvU5Aq9JOWXb2XQdRyH3Zgq0hbrOUtqaWTBdAhk6RcRyEqcEXuw7WcT8T9VY_upvdGXlKksyfy1L6J6vL3YTaTlKmYHa-6wQnlcDEMvtYg,,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,XKvPl7wkZQGzBGg9jmDEqlDpqfMrY0ucC5G9_UFoIrbvPbMNwIqs9HERujwGHuNhXxYqr9ZjjlWBdtaChoWR6MflpUyS2NRA83SEcLJyFSr3kU3PgelR&typo=1>

Daily Beast:<https://www.thedailybeast.com/exclusive-audio-reveals-potentially-illegal-coordination-between-nra-and-montana-senate-hopeful-matt-rosendale?ref=wrap>

Before the National Rifle Association dropped hundreds of thousands of dollars to try to flip a competitive, Democratic-held Senate seat, the gun-rights group's chief lobbyist apparently gave the race's Republican challenger a heads-up.

Chris Cox, the top political strategist for the NRA's Institute for Legislative Action (NRA-ILA), assured Montana Republican Matt Rosendale that the group would spend heavily to support his bid to unseat Sen. Jon Tester, Rosendale told attendees at a July event in Washington.

PAY DIRT exclusively obtained audio<https://soundcloud.com/user-379527848/matt-rosendale-on-nra-support/s-uApYn> of Rosendale's remarks, which good-government groups say raise serious questions of potentially illicit coordination between Rosendale and an independent political group supporting his campaign.
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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
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