Rep. Richard Neal (D-Mass.) sent a cease and desist letter to a local news station in an effort to have an ad highlighting his corporate political action committee (PAC) donors removed from the air.
According to TMI journalists Andrew Perez, Julia Rock, and Walker Bragman, Neal’s attorneys complained about the contents of the television spot in a demand letter sent Wednesday–just days before voters cast their ballots in the September 1 Democratic primary.
“I am counsel to Representative Richard E. Neal,” the letter penned by Brian G. Svoboda begins. “A sponsor on your station, a super PAC called Justice Democrats PAC, is attacking Representative Neal through your facilities. The advertisement is false, defamatory and should be removed from broadcast.”
The 30-second negative ad, which began airing in mid-August, notes that Neal “took more money from corporations than any other member of Congress” and “hasn’t held a town hall in years.”
According to Svoboda and Neal’s reelection campaign, there’s a distinction to be made here about the incumbent’s activity that catapults the ad into legally objectionable territory.
“[T]he ad purposely confuses the illegal corporate contributions of which it falsely accuses him, with the entirely legal contributions he actually received from PACs — i.e., entities which receive voluntary, personal contributions from corporate and union employees, shareholders and their families, and make lawful contributions from those funds,” the letter explains.
Progressive pressure groups and politicians typically refer to various permutations of “corporate money” or “corporate donations” as shorthand for corporate PAC contributions. Direct political donations from corporations are expressly illegal–for both the would-be corporate donor and the would-be corporate-funded politician.
The law here is codified at 52 U.S.C. §30118 [emphasis added]:
It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person knowingly to accept or receive any contribution prohibited by this section, or any officer or any director of any corporation or any national bank or any officer of any labor organization to consent to any contribution or expenditure by the corporation, national bank, or labor organization, as the case may be, prohibited by this section.
The Perkins Coie attorney goes on to favorably cite the landmark Citizens United U.S. Supreme Court decision to bolster Neal’s case.
“The Supreme Court could have not put it more plainly: ‘A PAC is a separate association from the corporation,” Svoboda argues. “But the advertisement’s plain, unqualified statement – ‘Last year, Neal took more money from corporations than any other Member of Congress [sic] – fails to acknowledge this distinction, of which the sponsor, a super PAC that itself is allowed to receive direct corporate contributions, is very well aware.”
Whether the phrase “money from corporations” is a distinction with enough difference from “money for corporate PACs” that it would rise to the level of false and defamatory, however, is an open question–but since the attack is a typical stock phrase of progressive organizations it would likely not actually be actionable.
If the ad were to be deemed false and defamatory, of course, the station might be open to liability if they now refuse to take it down.
Per broadcast law expert David Oxenford:
If the station ignores a demand letter claiming that an ad is false, and keeps running the allegedly false ad anyway, and the ad is in fact false and defamatory, there is potential liability. Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys if they receive a claim that an ad that they are running is false to determine if it is likely actionable. Typical political claims (e.g. “candidate X is a big spending liberal” or “candidate Y doesn’t care about our kids as he has voted against school funding increases 12 times”) are less likely to be actionable than are claims about the character, integrity and similar personal qualities of a candidate.
Additionally, the ad later clarifies the corporate entity/corporate PAC distinction, further calling into question the claims advanced by Svoboda and Neal in the cease and desist letter.
The attack spot ends: “First in Corporate PACS. Last in town halls.”
Justice Democrats responded to the allegations via their own attorney David Mirani in a letter addressed to the local NBC affiliate.
“The claims made in the Advertisement are not false, and are fully substantiated,” the letter claims.
The rebuttal goes on to explain [emphasis in original]:
The Neal Campaign makes one core argument in its letter – that the Advertisement states (in voice) that “Last year, Neal took more money from corporations than any other Member of Congress”, when he had actually taken more money from “corporate political action committees” than any other Member of Congress. This argument is not valid from a legal perspective – as on-screen during this voiceover, the Advertisement states that “Richard Neal is Number One in Corporate PAC Donations.” The communication later specifically states that Neal is “First in Corporate PACs, last in Town Halls.”
“From this, the Neal Campaign’s assertions are frivolous — it could not be clearer that the advertisement is accusing Neal of accepting more funds from corporate political action committees than any other member of Congress,” the response continues. Justice Democrats in no way accused the Neal Campaign of violating campaign finance law by accepting contributions from general treasuries of corporations – it is simply highlighting a politically-sensitive (but legally permissible) practice.”
According to the original story published in TMI, the advertisement is currently still airing on EGGB-TV, WGGB-TV, and WSHM-TV.
Neal faces progressive challenger Alex Morse in the primary.
[image via screengrab/Justice Democrats]
