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Did PACs Post Codes on Twitter to Violate Campaign Finance Laws?

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By Mark Wilson, Esq. on November 19, 2014 8:55 AM

Following Citizens United, FEC v. SpeechNow, and McCutcheon, what remains of federal election law is that political action committees can't coordinate with candidates and parties if they want their expenditures to remain "independent."

There are, however, no limits to the ways in which PACs will exploit loopholes (and that's a fact!). This week, CNN reported on a creative way to skirt election laws that sounds like a rejected idea from a John le Carre novel.

Tinker, Twitter, Lobbyist, Spy

According to CNN, during the 2014 elections, Twitter accounts were created that tweeted an arcane series of numbers. Much like the old "numbers stations" that featured a voice reciting a list of numbers over the radio, the tweeted numbers were clearly some kind of message.

Tweets like "CA-40/43-44/49-44/44-50/36-44/49-10/16/14-52-->49/476-10s" mean nothing to the rest of us, but they were apparently describing polling data for House races. That is, they're internal polling numbers being disclosed by a party to its friendly (but still independent!) PACs, or vice versa. It's unknown which PACs the accounts -- now deleted -- belonged to, but CNN's source claimed that Karl Rove's American Crossroads PAC, the nonprofit American Action Network, and the National Republican Congressional Committee all had access to the information the accounts were tweeting.

Hidden in Plain Sight

All of this raises the question, of course, of how technology can be used to circumvent campaign finance laws -- and whether the use of technology vitiates the fiction that unlimited expenditures are totally cool as long as there's a wall of separation between the PACs and candidates' own election committees.

Publishing information in public may violate the law, or it may not. The Wall Street Journal quoted a Republican FEC commissioner, Caroline Hunter, as saying there was nothing wrong with the tweets: "The FEC's long standing position is that the use of publicly available information does not implicate the coordination rules." That's true: "publicly available information" doesn't qualify as coordinated communication, but it's unclear that, just because the information was broadcast in public, it was publicly available. It was certainly presented in a coded way that outsiders wouldn't understand.

It remains to be seen what the limits are on publicly disseminated information. As the Journal notes, Sen. Mitch McConnell made two minutes of "B-roll" footage of himself smiling in different environments available on YouTube. While the express purpose of the footage isn't clear, it was clear to those in the campaign finance world that it was likely meant to be used, with a nod and a wink by McConnell-friendly (but still independent!) PACs.

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