“Public” is a spectrum. A Super Bowl telecast is public, and a hundred million people watch it. The site PetitTube specializes in the other end of the spectrum: Public YouTube videos that have never been watched by anyone. Every time you go to that site, the video you’re shown has never been watched. Like the Super Bowl, it’s public. Unlike the Super Bowl, it’s unseen.
This is a loophole that’s very helpful to people looking to work around federal election laws.
On Thursday, CNBC reported that it had acquired a number of polls from a group called America First Policies. America First Policies is a 501(c)(4), a group organized under a section of the tax code that allows “social welfare organizations” to take contributions from donors without paying taxes on the donations — or reporting the donors. That’s thanks to a 1958 Supreme Court decision that determined that the NAACP didn’t have to list its donors, given the risk of harassment they might face.
501(c)(4) organizations, like the NAACP, are allowed to advocate for political issues but not directly to endorse candidates. That’s led, in recent years, to abuse of (c)(4) status, as political actors set up nonprofits that can take in money from anonymous donors and then spend that money on political activity.
Like polling. America First Policies does a lot of polling, which CNBC stumbled across by following a link on the group’s website. This link, here:
See it? It says “Data,” down there at lower right. Click that, and you get to a page listing their survey research. In the most recent batch of data, a look at House Minority Leader Nancy Pelosi’s (D-Calif.) “crumbs” comment about corporate bonuses following the new tax bill. A plurality of Americans agree that those bonuses don’t seem like much — a bit of data that would be useful for advocates of the tax bill to know.
Advocates of the tax bill like President Trump.
“America First Policies, which actively advocates for policies favored by Trump, denied that any of the documents, many of which are labeled ‘confidential,’ were intended to benefit the White House or the president,” CNBC’s Christina Wilkie writes. America First Policies’ communication director told Wilkie that she didn’t “know if this information is ever shared with the White House. Anyone can see it.”
Wilkie then quotes Brian Walsh, the group’s executive director.
“In the old world [of polling], things were kept secret. In the new world, you make everything public,” Walsh said.
Yeah, no, you don’t. Polls are expensive and contain information that could be unhelpful for your political opponents to learn about. So you don’t make everything public — unless the way you define “public” depends on the distinction between the Super Bowl and PetitTube. Unless your version of “public” means “a dark-colored link on a darker-colored background at the bottom of a Web page.” Unless there’s a reason to make your poll public in a way that the public doesn’t see it.
If you give something of value to a political campaign, that’s a campaign contribution. You can’t simply cover the campaign’s bills for its television spots out of the kindness of your heart; you have to report that donation and ensure it doesn’t exceed federal limits. That holds true for valuable information, too.
“If you do a poll, pay money for it and give it to a candidate, that’s an in-kind contribution,” Lawrence Noble, senior director of the Campaign Legal Center, told The Post. “So what [groups] started doing was they figured out that if they made the polling public, then anyone can use it, and it’s not a contribution to a candidate. So the game is to make the polling public, but to do it in such an obscure way that the public doesn’t know it.”
Before the 2014 election, there was a Twitter account called @truthtrain14. All it did was pump out weird combinations of letters and numbers. Anyone could see those strings, but few people would since the account never attracted much attention. And even if they did, they wouldn’t know what they were looking at. What does FL-44/42-44/44-35/35-42/41-49/47-10/22/14-26 mean, anyway?
Well, that particular string means something like: In Florida’s (FL) 26th Congressional District (26), a poll on Oct. 22, 2014, (10/22/14) found that the Republican candidate led by two points (44/42). CNN’s Chris Moody first reported on these cryptic tweets and linked them to an effort to share data from Republican polling “publicly,” in a way that would (the tweeter hoped) evade campaign contribution rules. @Truthtrain14 was a bit murkier than a “Data” link on a Web page, but it seems likely that the intent was the same.
“Giving non-public polls to the Trump campaign would be an illegal in-kind contribution,” Noble wrote in an email. Making the polls “public” through a hidden link? A much grayer area. Especially, Noble said, “if they made a special effort to tell the Trump campaign where it was.” This was one question about @truthtrain14: Who was told how to interpret the other numbers in those strings of characters? If someone at the nonprofit tipped off someone from the Trump campaign about where to click, the legal picture changes, in Noble’s estimation.
As Wilkie notes, people associated with the Trump 2020 campaign (which has been an existent entity since immediately after Trump’s inauguration) regularly had contact with members of the America First Policies team. One of the (c)(4)’s founders is Brad Parscale, the Trump 2016 digital media lead who, earlier this week, was publicly identified as the campaign manager for Trump’s 2020 effort.
What’s the value to Trump’s campaign? Why not just do their own polling? If this setup was an intentional effort to share information between America First Policies and Trump’s campaign (which seems more than possible), the net effect would be to allow unlimited donations from anonymous donors to cover one of the central costs that any campaign (especially a campaign centered on a sitting elected official) would regularly incur.
“The main takeaway,” Noble wrote, “is that the FEC’s and IRS’s enforcement of the laws and regulations is totally inadequate to ensure that we have the required disclosure and protect our elections from corruption.”
Another takeaway is that “public” is in the eye of the beholder.
If the beholder ever sees it.