A legal battle is playing out in D.C. federal court that could determine how much money the Democratic and Republican Parties can pump into advertising in pivotal congressional races in the final week of the 2024 campaign and beyond.
At issue is what Democrats say is a potentially illegal political advertising strategy that Republicans have used in recent weeks to try to overcome a significant fund-raising deficit in states with critical Senate races, such as Arizona and Pennsylvania.
With less than two weeks until Election Day, House Democrats’ campaign arm has sued the Federal Election Commission for failing to stop the Republicans and are seeking a ruling to either bar the practice or clear the way to use it themselves.
A hearing on the matter is set for Monday, and both parties expect a ruling as soon as Tuesday, either blocking or allowing the practice in the critical last stretch before Election Day.
Here’s what to know:
Democrats have been dominating Republicans in fund-raising in key Senate races.
Continuing a recent trend, Democratic Senate candidates have been trouncing their Republican rivals in fund-raising battles in pivotal races across the country.
In Ohio, Senator Sherrod Brown has raised about four times as much money as his Republican challenger, Bernie Moreno. In Montana, Senator Jon Tester has raised about three times as much as Tim Sheehy. And in Arizona, Representative Ruben Gallego has raised more than twice as much as Kari Lake.
Races in Pennsylvania, Wisconsin and Nevada also show large fund-raising leads for Democrats.
Republicans are exploiting a legal loophole to try to close the gap.
Congress has placed strict limits on contributions from national party committees to individual candidates. Those have led to strict requirements governing when and how national parties can cover the cost of campaign advertisements for individual candidates. For so-called hybrid ads, they must split the cost with the candidate, and no more than half the ad can be about a specific race; at least as much time must be spent advocating for general candidates of the party.
But the National Republican Senatorial Committee is skirting those rules and running tens of millions in ads for individual candidates by categorizing them as joint fund-raising appeals. Those are subject to a different set of regulations that allow coordination and place no limits on content beyond that it must include a solicitation.
They are doing so by simply adding a “donate now” appeal in the last few seconds of the ad with a QR code that links to a donation page for a joint fund-raising committee established between the committee and the Republican candidate.
Not only does the technique allow national Republicans to ignore the content restrictions of a hybrid ad, it also allows them to take advantage of a lower television advertising rate available to candidates.
Republicans began testing the strategy in Montana in July with an ad for Mr. Sheehy. After he discusses his military service, the ad ends with the phrase, “Join my team, give now.”
Republicans have begun running similar ads in Maryland, Arizona, Wisconsin, Michigan and Nebraska to help bolster their candidates who were lagging in fund-raising.
Since they began using the strategy, Republicans have noticed an uptick in polls for their candidates in key Senate races, they say.
The strategy has prompted outrage from Democrats, even though they pioneered it.
Democrats argue that Republicans are making a mockery of campaign finance laws, because their so-called joint fund-raising appeals are focused almost entirely on advocating a candidate’s election and are coordinated with the candidate.
“This spending far exceeds the limits set forth in federal law and is illegal,” lawyers for House Democrats wrote, adding, “As such, the N.R.S.C. and Republican candidates should be on the hook for large fines and penalties.”
The Democrats fault the F.E.C. for failing to render an opinion as to whether the Republicans’ practices are legal. But the commission, which is charged with enforcing federal campaign finance laws, deadlocked 3-3 along party lines, as it often does, and could not issue a decision on the matter.
That left House Democrats “between a rock and a hard place on the eve of the November election,” their lawyers wrote. “It may adhere to federal law, as it best understands it, but in doing so must sit on its hands while Republicans invest tens of millions of dollars into arguably illegal television advertisements. Alternatively, D.C.C.C. may mimic this newfound tactic, but at the risk of exposing itself and its participating candidate committees to future enforcement — including felony criminal prosecutions brought by the U.S. Department of Justice.”
Republicans argue they are merely using a practice that Democrats pioneered and embraced.
The advertising strategy Republicans are using “is not a new phenomenon,” their lawyers said, citing its use during the presidential campaigns of President Barack Obama, Secretary of State Hillary Clinton and Vice President Joseph R. Biden Jr.
Moreover, the Republicans note, House Democrats are complaining about a tactic that Senate Democrats have also used for their candidates during this campaign cycle.
“The N.R.S.C. would be injured if it is forced to change its joint fund-raising ads,” Jason Thielman, the group’s executive director, wrote in an affidavit, noting that it would have to make several late changes and incur substantial costs.
Democrats concede that some on their side have used joint fund-raising committees for Senate candidates, but they say they are doing so only online and argue that they are complying with the spirit of the hybrid ad rules.
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