The real problem with the relationship between Tea Party Express and Chris McDaniel

State Sen. Chris McDaniel speaks at the Tea Party Express bus tour stop in Jackson, Mississippi, Thursday, April 24, 2014. (AP Photo/Rogelio V. Solis)
State Sen. Chris McDaniel speaks at the Tea Party Express bus tour stop in Jackson, Mississippi, Thursday, April 24, 2014. (AP Photo/Rogelio V. Solis)

On Thursday, the Tea Party Express sent out an email to supporters from the organization's chief strategist, Sal Russo. "URGENT: We are heading to Mississippi," it began, in large bold letters. "We just got off the phone with the McDaniel campaign and they need our help!" (The McDaniel campaign, of course, is the campaign of Mississippi state senator Chris McDaniel, who faces a runoff against incumbent Sen. Thad Cochran after Tuesday's primary.)

That alleged phone call drew some attention. Federal law can prevent outside groups like Tea Party Express from coordinating with candidates for office, leading the National Journal to ask, "Did a Tea-Party Group Just Illegally Coordinate With Chris McDaniel?" Experts we spoke with said no — largely because the Tea Party Express is raising money on the promise of campaign work in Mississippi that so far has been essentially non-existent.

Since May 16, the Tea Party Express has sent at least ten emails that mention McDaniel's race. Below are excerpts from some of the emails that the Post's Aaron Blake received after signing up for updates from the group.

  • May 16. A line from the email: "Donate today to send principled conservative Chris McDaniel to Washington, D.C."
  • May 23. "Please help us get Chris McDaniel, and other candidates like him, to D.C., and stop this madness."
  • June 1. "Will you please join Sarah Palin, Rick Santorum and the Tea Party Express in supporting and spreading the word about the candidacy of fiscal conservative Chris McDaniel?"
  • June 2. "Donate today to send principled conservative Chris McDaniel to Washington, D.C."
  • June 4. "If we are going to fight off the establishment and D.C. insiders in the Mississippi run-off in three weeks, we are going to need the support of all Tea Party supporters!"
email

And so on. The most recent email, the "URGENT: We are heading to Mississippi" one, asks that supporters donate as the Tea Party Express makes "emergency preparations and plans to head back to Mississippi to campaign for Tea Party candidate Chris McDaniel." The obvious suggestion is that the Tea Party Express has been working hard to get McDaniel elected, and needs more money to do so.

On April 24, the group's "Fighting for Liberty" bus tour stopped in Biloxi and Jackson, passing through on a route that took it from Florida to Minnesota. McDaniel promoted the events on his Web site and made an appearance at the Jackson stop.

There's no evidence that the Tea Party Express has done anything else for McDaniel after that point.

The Center for Responsive Politics maintains a database of spending by outside groups (like the Tea Party Express and its political action committee, Our Country Deserves Better). As of Thursday evening, that database — which is updated "half-a-dozen times every day," according to CRP communications director Viveca Novak — showed no spending by Tea Party Express's PAC on McDaniel. If the group had spent more than $1,000 on McDaniel within the last 20 days before the election, it would have had to report it. No report means no spending.

Reached by phone on Thursday in the Sacramento, Calif., offices of his political consulting firm, Russo confirmed that the group hadn't spent any money on McDaniel. So what had it done? "We haven't done anything yet," Russo said, then clarifying that he meant it hadn't done anything in the two-day-old runoff. Asked about the primary campaign that just concluded, he paused. The group "did some press conferences" that he didn't attend, he said. He then repeated "I don't remember," several times, and offered up the example of that bus tour.

Russo drew a distinction between the Tea Party Express and Karl Rove's American Crossroads PAC, which raises money and runs TV spots. Tea Party Express has bus tours to educate voters, Russo said, though he "would enjoy having big money for TV myself."

He does. According to an FEC filing from May, the group had at that point raised $2.5 million in 2014. The Center for Responsive Politics indicates that it has raised $8.5 million in the 2013-2014 election cycle — much of it in the form of small donations. It's spent $8.4 million; of that, $181,953 was spent on three "independent expenditure" efforts to help candidates outside of Mississippi, including running TV ads in Colorado. (The Post wrote about the group's low election-related spending earlier this year.) Those "I.E.s," as they're known, are the sort of spending that would bar coordination.

Jason Kaune, an election law attorney with the California firm Nielsen Merksamer Parrinello Gross and Leoni, told the Post by phone that if the Tea Party Express doesn't spend any money, there's no coordination. "To be an in-kind, you have to spend a reportable dollar and talk" to the candidate, he said. Even if Russo and the McDaniel campaign spoke, it doesn't matter at this point, since there's no reportable I.E. spending.

That bus tour doesn't count, either. "The English language understanding of the word 'coordinate' is very different than what counts as coordination in the federal rules," Rick Hasen, a professor specializing in election law at the University of California Irvine School of Law, explained by phone. While there was obvious coordination required to share the stops on the Tea Party Express bus tour and get McDaniel to attend, that's only in the colloquial sense. Coordination that would run afoul of election law requires much more that that, such as sharing spending and strategic plans. The goal of the prohibition, after all, is to prevent campaigns from getting around donation limits by simply telling outside groups where to spend the unlimited money they raise. If there's no appearance of that sort of coordination, the I.E. is probably fine.

The FEC allows candidates to appear at events hosted by outside groups and to raise money for that group, Kaune pointed out, and the bus tour isn't much different. Russo used that argument, too, noting that Mitt Romney had helped raise money for a super PAC that then spent that money on ads backing his campaign. But the appearance of coordination can invite its own scrutiny. "A lawyer would advise that they not have any communication," Hasen said. "It's much easier to defend yourself if you can say, 'we had strict rules and we don't communicate with a candidate." 

As Kaune put it, once an I.E. starts discussing details with a campaign, even if an I.E. doesn't exist, you're "a little bit pregnant," and the coordination is set. It's not clear that Russo and the McDaniel camp did so, but if Tea Party Express were to launch an I.E. now, they'd attract a lot of attention. Russo said that when the group does I.E.s, they "usually cut off communications with the candidate."

We asked Russo by email what he and the Tea Party Express planned to do in Mississippi, and were told that they "intend to be active on behalf of McDaniel, but our focus will more likely be grassroots-oriented with some TV and radio support.  Our plans have not been finalized at this point." We asked him something similar in our phone call on Thursday. "We certainly want to be involved, but it was just Tuesday night, so we really haven't had a chance to figure out what we're going to do," Russo said. "We did check to see that our bus is available. ... We're certainly considering doing that."

Shortly after we spoke on Thursday, the Tea Party Express sent out another email.

As you know, whenever we challenge entrenched politicians, journalists come out of the woodwork to attack you and me and try to distract voters from the serious issues that are surrounding each election. However, let them write their stories and continue living in their bubbles -- we are on the ground fighting AND WE'RE WINNING!

Then, just above the link to give money, this: "Please join us in fighting back against establishment politicians and journalists, and help us elect Senator Chris McDaniel by donating today!"

Philip Bump writes about politics for The Fix. He previously wrote for The Wire, the news blog of The Atlantic magazine. He has contributed to The Daily Beast, The Atlantic, The Daily, and the Huffington Post. Philip is based in New York City.
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