The press and comedians have recently focused on campaigns loading “B-roll” footage onto Internet sites where Super PACs and other outside spending groups can download the footage to use in political ads.  Senator McConnell’s campaign’s use of this tactic has drawn the most attention, but it is far from the first or only campaign to do this.  Aside from the irony of Super PACs using video from the very campaigns they cannot coordinate with, the Campaign Legal Center argues it is illegal, citing a statute and regulations that treat the “republication, in whole or in part” of a candidate’s campaign material to be an expenditure or in-kind contribution to the campaign.  2 U.S.C. § 441a(a)(7)(B)(iii) and 11 C.F.R. 109.23.  What is missing from the debate is a little noticed line of decisions, dating back to 2010, in which three FEC Commissioners have consistently held that there is no “republication” of a candidate’s material if the outside group inserts its “own message” over the candidate’s footage.

Beginning with a 2010 decision involving the Democratic Congressional Campaign Committee (MUR 5879), followed by a 2012 decision involving American Crossroads (MUR 6357) and two decisions last year involving among others Christie Vilsack for Iowa (MUR 6617) and House Majority PAC and Cheri Bustos for Congress (MUR 6667), the FEC has split over whether an outside group can incorporate 10 to 15 seconds of footage obtained from the candidate’s website in a 30 or 33 second commercial.  Three Commissioners have consistently found that an outside group —even a Super PAC—may use of “snippets” of a campaign’s publicly available “B roll” footage, so long as it does not repeat the “content, format and overall message” of the candidate’s ad.  Statement of Reasons of Chair Caroline C. Hunter and Commissioners Donald F. McGahn II and Matthew S. Petersen, MUR 6357, page 4.

For these three Commissioners, the question turns on whether the independent group’s message is distinct from the candidate’s message, or if it simply “repeat[s] verbatim [the candidate’s] message….”  Statement of Reasons of Commissioners Hunter and Petersen, MUR 6617, page 1, quoting Statement of Reasons of Chair Hunter and Commissioners  McGahn and Petersen in MUR 6357.  The candidate’s ad has not been “republished,” even if the campaign’s footage makes up a third of the images used in the independent expenditure, so long as the outside group or Super PAC has added its own “text, graphic, audio, and narration,” causing the ad to become the outside group’s “own message.”  Statement of Reasons of Chair Caroline C. Hunter and Commissions Donald F. McGahn II and Matthew S. Petersen, MUR 6357, page 4.  The fact that the outside group’s ad and the campaign’s ad touch on the same themes is not “materially significant” to the analysis.  Only if the ad is “close to a carbon copy” of the candidate’s ad does it appear that it will run afoul of the law under this analysis.

Thus, it is no surprise to election lawyers that this cycle will be filled with readily available footage of candidates with flags, firefighters, puppies and the candidate’s adoring family.  Nor would we be surprised to see the amount of footage outside groups use grow from a third of the images in the ad to half or three quarters of the ad, so long as the music, graphics and voiceover are new.  What will be interesting is the first time a Super PAC downloads a candidate’s footage to make an ad that attacks that candidate, reminding us all that freedom on the Internet can be a double edged sword.