Trick Websites Dupe Democrats Into Donating To Republicans | ThinkProgress

[Gothmog]

15. These websites are illegal

I found this analysis on why these websites are illegal on Prof. Hasen's electionlaw blog. I think that it is clear that these websites are illegal and the DNC needs to sue the RNCC http://www.acslaw.org/acsblog/do-misleading-campaign-websites-violate-federal-law

By 1992, the FEC came to share Justice Ginsburg’s view and amended its regulations at 11 C.F.R. § 102.14(a) to extend the candidate name prohibition to include not only the official name of the committee, but also “any name under which a committee conducts activities, such as solicitations or other communications, including a special project name or other designation.” The FEC explained that it had “become more concerned about the potential for confusion or abuse when an unauthorized committee uses a candidate’s name in the title of a special fundraising project. A person who receives such a communication may not understand that it is made on behalf the committee rather than the candidate whose name appears in the project’s title.” The Commission further explained that “the potential for confusion is equally great in all types of committee communications,” not merely the official titles.

Of course, notwithstanding the ban on the use of candidate names in the titles of committee communications, committees remain free to “discuss any number of candidates, by name, in the body of the communication.” Additionally, following a 1994 amendment to the FEC’s regulation, noncandidate committees may also use the name of a candidate “in the title of a special project name or other communication”—but only “if the title clearly and unambiguously shows opposition to the named candidate.” Thus, the law is clear: a noncandidate committee may not use the name of a candidate in the committee’s title or in the title of a special project, such as a website, unless the committee opposes that candidate and the title of the website or other communication makes that opposition very clear.

The FEC made clear in a 1995 advisory opinion that the operation of a website constitutes a “special project” for purposes of the candidate name prohibition. Thus, because the NRCC is a noncandidate committee; the new websites are special projects under the law; and the URLs and titles include the names of candidates; the websites clearly fall within the federal law candidate name restrictions, and may only use the name of a candidate in their titles “if the title clearly and unambiguously shows opposition to the named candidate.” But far from doing so, the URLs and titles of these websites contain textbook language indicating support for these candidates—e.g., SinemaForCongress.com. Indeed, the phrases of support used in the website URLs and titles are nearly the same as the examples of express advocacy or support the Supreme Court used in Buckley v. Valeo, such as “Smith for Congress.”

Finally, it is not sufficient, as some have asserted, that a reader who scrutinizes these websites more closely will ultimately recognize that they oppose, rather than support, the candidate named in the title. The FEC regulations make it clear that “the title” must unambiguously indicate such opposition. The regulations thus put the burden on political committees to refrain from creating misleading websites – not on the voting public to sort through intentionally confusing language.

Consequently, these misleading websites violate federal law. The NRCC should take down these websites and the FEC should initiate an enforcement action against the NRCC’s flagrant violations of federal campaign finance law.

If the law cited in this article is correct, the DNC could wait and sue to force these committees to turn over all funds. In any event, the RNCC is going to be facing some litigation for this tactic.