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McCaskill-Akin tale raising questions in legal, political communities

Sen. Claire McCaskill, D-Mo.
Sen. Claire McCaskill, D-Mo.

Sen. Claire McCaskill’s new description of how she helped Republican Rep. Todd Akin in Missouri is starting to raise eyebrows across the political community.

At issue: did McCaskill illegally co-ordinate her campaign with Akin’s? Or did she, or her campaign, make an in-kind donation to Akin that was improperly kept secret in 2012?

In an excerpt from her new book published in Politico, McCaskill details the now-familiar story of how she purchased advertising claiming Akin was the most conservative Republican in that party’s primary. The piece is entitled “How I Helped Todd Akin Win — So I Could Beat Him Later.”

The story adds this:

“On the Thursday before the election, I called Ron Gladney, the husband of Rep. Jo Ann Emerson, a Republican from Missouri. I asked him if he could get a message to the Akin camp to put the Huckabee ad back up. … I also placed a call to Michael Kelley, a Democratic Party and labor operative who was friends with a former Akin staffer, and asked him to convey the same message to the Akin camp. A short time later my campaign manager, Adrianne Marsh, got a call from the Akin campaign. The person on the line wanted to talk to our pollster. Adrianne called me, and I gave clearance, allowing (pollster Tom) Kiley to speak in broad generalities. Three hours later the Huckabee ad was back up.”

The help may have violated campaign law in a couple of ways. Let’s look.

U.S. Rep. Justin Amash, a Republican from Michigan, tweeted this Wednesday:

Rick Hasen, a law professor at UC-Irvine who writes a blog about election law, then wrote this:

“This does raise a serious question about coordination. The Senator’s campaign was sending a message to the Akin campaign about what strategy to follow.”

And this from the Washington Post: “It certainly raises a red flag.”

But there’s more.

Campaign contributions must be disclosed to the Federal Election Commission. And not just money: “anything of value given to influence a Federal election is considered a contribution,” the FEC website says.

There does not appear to be any record in the FEC disclosures from 2011 to 2012 of any contribution, in dollars or in-kind, from McCaskill or her campaign committee to Akin’s campaign.

Was the information from McCaskill’s pollster to the Akin campaign something of “value”? Apparently McCaskill thought so: “I had spent millions,” she writes, “trying to control the outcome of the Republican primary.”

She also said she spent $40,000 on a poll of Republicans. And in any case, as McCaskill admits, the campaign ad she wanted Akin to run was put back up just hours after the conversation.

A consultant in the Kansas City area said a violation “seems pretty clear cut.” But no complaint has been filed, at least that we know about, and the FEC would be unlikely to aggressively pursue the issue, he said.

In a text, Hasen was asked if the failure to disclose was a violation. “Maybe so,” he wrote.

He then wrote this:

“I think the stronger issue is whether McCaskill made an unreported and excessive in kind contribution to the Akin campaign by sharing the results of her polling data. If she gave the campaign something worth more than the limit (which was probably $2600 in that election) she’d be giving an in-kind contribution, and a contribution worth that much would have to be reported.

Well did the Senator give Akin something of value? It looks like it. After all, we know it is valuable to him because the Senator writes “Akin did not have money for polling,” and she provided the information he needed to clinch the primary (at least in the Senator’s telling). Elias’s response to this point is: “There’s no suggestion she shared ‘polling data’. She only ‘gave clearance, allowing [pollster] to speak in broad generalities.” Perhaps that distinction will work, but I still think the issue is a serious one and merits a fuller analysis (and certainly fuller than I can give it now). I’m not suggesting the Senator broke the law, but there is enough here to justify a closer look.

I should add that there’s the potential to look not only at McCaskill’s campaign but also Akin’s campaign.

P.S. Motive does not matter. Here’s a case I worked on as a clerk in which one contributor made an excessive in kind donation in a California Senate race to a fringe candidate and claimed it was not illegal because he was doing it to help draw votes away from the Republican candidate to help the democratic candidate. He went to jail. Michael Goland v. FEC.”

A McCaskill spokeswoman said any allegation of impropriety is dumb.

“A candidate is always free to give another candidate advice,” she wrote.

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