Dark Money Group's #McConnelling Violates Campaign Laws: Watchdogs

WASHINGTON -- Campaign finance watchdogs are calling foul on a "dark money" nonprofit's use of b-roll footage posted by the campaign of Sen. Mitch McConnell (R-Ky.) in the nonprofit's own independent advertising.

Watchdog groups Democracy 21 and the Campaign Legal Center sent a letter on Friday to the Kentucky Opportunity Coalition, a nonprofit supporting McConnell's reelection, alleging that its use of footage shot by the McConnell campaign constitutes an illegal corporate contribution and is a violation of election laws that ban coordination between candidates and independent groups.

"We believe this is a clear case of violating a statutory prohibition that prevents outside spending groups from republishing campaign materials prepared by a candidates campaign in this case so called 'B-Roll' footage of Senator McConnell," Democracy 21 executive director Fred Wertheimer said in a statement.

The b-roll footage in question, which shows the Kentucky senator smiling, walking with constituents and sitting with his wife, was posted by the McConnell campaign to its public YouTube page for the purpose of outside groups like the Kentucky Opportunity Coalition using it in their advertisements. Other campaigns, including those of Sen. Kay Hagan (D-N.C.) and her potential Republican opponent Thom Tillis, have also employed this tactic .

The watchdog groups say that election laws view the republication of campaign materials by an independent group as an in-kind contribution to the campaign. Since the Kentucky Opportunity Coalition is organized as a nonprofit corporation and campaigns are forbidden from receiving corporate contributions, the groups allege that the republication would be an illegal corporate contribution.

"There is no question that the 'B-roll' prepared and posted by the McConnell campaign constitutes 'campaign materials prepared by the candidate' within the meaning of the law, and that the use of such 'B-roll' footage by an outside spender is a 'dissemination, distribution or republication' of the campaign material," the groups wrote in their letter to the Kentucky Opportunity Coalition and the McConnell campaign.

The Kentucky Opportunity Coalition strongly denies that any laws have been broken, and says that its republication of the McConnell campaign's b-roll footage is totally acceptable.

"From every angle, Fred is just wrong," Kentucky Opportunity Coalition spokesman Scott Jennings said in an emailed statement. "The Kentucky Opportunity Coalition is operating well within the law and within its rights to communicate with Kentuckians about important issues."

Jennings pointed to an article by former Federal Election Commission chairman Robert Lenhard explaining that FEC commissioners have split on four decisions on the question of republication since 2010.

In those four cases, three of the FEC commissioners, all of them Republican, argued that republication of "snippets" of publicly available b-roll footage is within the law so long as the group using the footage adds its own "text, graphic, audio, and narration" to its advertisement.

Wertheimer noted these split decisions upon announcing the complaint: "Unfortunately, the FEC is being prevented from enforcing the campaign finance laws by the three Republican Commissioners who consistently block any significant enforcement of the laws."

The McConnell footage was used in advertising that was part of a $1.8 million ad buy made by the Kentucky Opportunity Coalition beginning March 19. The ad buy is by far the largest advertising campaign by an independent group in the Kentucky Senate race.

The b-roll had already received wide publication thanks to the efforts of Comedy Central's "The Daily Show," which turned McConnell's b-roll into an Internet meme -- called "McConnelling" -- by overlaying different songs over the footage and asking viewers to create their own. These videos range from showing McConnell smiling to the song "I'm Black" from Chris Rock's 1993 satire "CB4" to inserting McConnell into the introduction of the TV show "Full House."

McConnell's Republican primary opponent Matt Bevin has also used the b-roll footage to cut his own web video .

The Huffington Post previously reported that the Kentucky Opportunity Coalition and its sister super PAC, Kentuckians for Strong Leadership, operate as an extension of the political network that runs the Crossroads political groups formed by Karl Rove following the Supreme Court's 2010 Citizens United decision.