Democrats are accusing the Republican U.S. Senate candidate Matt Rosendale of illegally coordinating with the National Rifle Association After this audio recording was posted on The Daily Beast Web site. (Click play above to listen)
Eric Whitney: The muddy audio lasts 54 seconds, and in it Matt Rosendale tells an unidentified person that he expected the NRA to buy media ads in support of his campaign against Democratic U.S. Senator Jon Tester. John Adams, editor of the Montana Free Press website has been following up on the story. John thanks for joining us on Montana Public Radio.
John Adams: Thanks for having me here.
EW: So let's start with this recording. Where did it come from?
JA: You know, I'm not exactly sure what the source of the recording is, but what we know is that The Daily Beast released a few seconds of audio from a conversation that they said happened in July of 2018. So we don't know if they got it back in July and have been holding onto it or this is something that recently came to them. But those 53 seconds of audio that they published they say were recorded at some point in July.
EW: I don't think anybody would be surprised to learn that Matt Rosendale got an endorsement from the NRA or that the NRA might be buying ads or trying to help him get elected. So what's the violation that this tape allegedly proves? What's wrong with Matt Rosendale saying that he's talked to the NRA and that they've told him that they're going to, "come in on his behalf"?
JA: Well, there's nothing wrong with a candidate seeking an endorsement from a group, but they're not allowed to talk or coordinate with organizations who are spending money, particularly these dark money groups, these 501(c)(4) groups. It wasn't the NRA per se, it was the one of their political groups, the NRA Institute for Legislative Action which is a 501(c)(4) social advocacy group. These are what are known as dark-money groups. These are groups whose funding we don't know where it comes from. So the problem with that is that campaign spending on Rosendale's behalf with the candidate's knowledge constitutes a campaign expenditure. That's like saying I'm going to give you money. Now the problem with that is Matt Rosendale did not report -- if this is in fact true -- did not report as required by law that this campaign expenditure had been made, because technically can't take a $400,000 expenditure from an outside group that's against the law. And so the reason these laws exist is to avoid the appearance of corruption and quid pro quo.
EW: Right. And when you when you talk about a 501(c)(4) group that's a designation that the IRS makes. And there are different rules for a candidate and a candidate has to report contributions that they receive. There are limits on that. And a 501(c)(4) is allowed to spend without reporting the source of its donations. But the problem is if they coordinate. If one organization says hey I'm going to spend 400 thousand dollars on your campaign then that's knowledge a candidate isn't supposed to have, because that's that's basically the same thing as a campaign donation. Because the candidate could then not spend money, or make decisions about how they spend money based on what these "dark-money" groups are doing, right?
JA: That's right. If you or I wanted to give money to the candidate, we're limited in the amount of money that we can give. We can't give candidate Rosendale anything more than the federal limit, which I believe is $2,700 per person. That's where our free speech ends, is at $2,700. A corporation or these dark-money groups that are funded anonymously can spend hundreds of thousands and millions of dollars on a candidate, but they can only do it to educate the public on an issue. They can't do it in coordination with the candidate's campaign.
EW: Right. They're supposed to do it independently. Because if they were tightly coordinated, that would be basically just working as part of a candidate's campaign.
JA: Yes exactly.
EW: You talked to Matt Rosendale spokesman Shane Scanlon about whether this tape proves that Mr. Rosendale violated campaign finance laws. What did Shane Scanlon tell you?
JA: I didn't speak with him. I tried speaking with him. I did get a statement emailed to me this afternoon. And what he said is he immediately cast blame on Matt Rosendale's opponent Senator Jon Tester. Said that, "this is an amusing desperation on Jon Tester's part and it's completely baseless." He went on to say that:
"The only thing this audio proves is that Matt sought the endorsement of the NRA, and we're proud to have it. Matt and the NRA have never discussed anything beyond the organization's membership and endorsement process. If Jon Tester is so desperate to save his seat, perhaps he should just focus more on fighting for Montana and defending our Second Amendment rights rather than spreading lies about our campaign."
JA: Now, I will say that this information did not come from Tester campaign so far as I know.
EW: All we know is it just showed up in The Daily Beast. We don't know where it came from or who the person speaking with Mr. Rosendale on the tape is, right?
JA: That's right. The source of the audio and who else is on the audio is unknown.
EW: I guess the question of whether this audio proves that Mr. Rosendale was illegally coordinating with the NRA. Comes down to the phrase, "come in." Where Mr. Rosendale says the NRA person told him they were going to "come in for him." I guess the Tester campaign is alleging that that proves that there is illegal coordination. You checked with, I guess, an expert in campaign finance law. Tell me about who you spoke with and what kind of conversation you had about that issue of whether this audio proves coordination?
JA: Yeah I talked to a few folks. I talked to individual Brendan Fischer who's the director of the Federal Elections Commission reform program for the Campaign Legal Center. The Campaign Legal Center does a lot of work tracking these issues. And he told me that it's pretty clear cut.
In this case we've got the NRA Institute for Legal Action's political director apparently telling Rosendale that the group would be spending on ads in his race, apparently giving him a sense of the content of the ads -- that was going to be dealing with the Supreme Court -- and then they may also describe the approximate timing of when those ads would run. And what he said is Rosendale remarks taken together with the fact that this ad campaign that he alluded to did in fact happen in the time frame and the subject matter that Matt Rosendale alluded to, that that satisfies the three pronged legal test.
EW: What does that mean, that the three pronged test? What three things does this piece of audio have to establish for this to be a campaign violation in Mr. Fisher's estimation?
JA: One: Was there a payment? In this case the 400 and some thousand dollar ad buy, that would be the payment. The content: Is there evidence that there was coordination of the content? The fact that they talked about their interest was in the Supreme Court votes. And then the third part is the conduct. And the conduct is the fact that these coordinated expenditures were made through the use of a common vendor. This is a company that both the NRA and Matt Rosendale's campaign are both using.
EW: So we've said that the Rosendale campaign disputes that interpretation. They say the audio shows nothing more than the NRA endorsing Matt Rosendale, an endorsement that he's proud to have. What's the Tester campaign saying about what this means?
JA: They're not saying a lot at this point, but predictably they're pointing out that this raises serious concerns about Matt Rosendale working with an outside dark-money group to support him. And they call this the latest in a troubling pattern of Matt Rosendale playing fast and loose with campaign finance laws.
EW: Do you know if this audio is likely to result in some kind of investigation or a Federal Election Commission looking at it? Could there be more to this?
JA: You know, I think it's unlikely at this point. First of all, somebody would need to file a complaint with the FEC. Now that very well may happen. But at that point you would need the FEC to vote to take up an investigation and that requires -it's a six member body -- and that requires four votes. Right now, the FEC only has four members, two Democrats and two Republicans, and so the FEC hasn't been doing much in the way of enforcement actions. In fact, Anne Ravel, the former chairwoman of the Federal Elections Commission, told me that in her four years on the commission they had nine of these cases in front of them and the commission took no action on any of them. So, as far as whether we'll see any kind of investigation of this, I think that's unlikely. But as one campaign watchdog told me, it's important that the public at least is aware of it.
EW: Been a lot of activity about this on Twitter today. There was one tweet where someone was suggesting that the Montana Commissioner of Political Practices take action on this. That's outside his jurisdiction, Right?
JA: Yep. This is a federal election and therefore it falls to the federal election officials to take action, if any. Our Commissioner of Political Practices here in Montana focuses on state issues and has no authority on this.
EW: John Adams thanks so much for joining us on Montana Public Radio.
JA: Thanks Eric.
EW: John Adams is the editor of the Montana Free press. You can read his story on potential illegal coordination between NRA and Matt Rosendale here, or at MontanaFreePress.org.