As North Carolina Special Election Looms, FEC Fails to Reach Consensus On Business Ads

April 11, 2019 by Dan McCue

With just days to go before a critical deadline, the Federal Elections Commission on Thursday failed to reach consensus on whether radio ads created by a candidate in North Carolina’s upcoming special ninth congressional district election are “electioneering communication” or intended only to promote her real estate business.

Jason Torchinsky, attorney for congressional candidate Leigh Brown, said in light of the commission’s failure to act, the matter is now headed to court, where he will seek an expedited temporary restraining order to keep ads for his client’s business on the air through the May 14 election.

“The electioneering communications window [for this special election] opens on Sunday,” Torchinsky said as he tried to impress the urgency of his client’s situation on the four FEC commissioners.

As he spoke they continued to struggle with the choice before them: either to declare the real estate business ads have nothing to do with Brown’s candidacy or approve alternative advertisements Brown can run during her campaign.

“If there’s one way to discourage a business owner from running for Congress, this is one way to do it,” a frustrated Torchinsky said as the commissioners repeatedly tried and failed to reach a compromise that would satisfy them all.

“To say if you have a business that happens to share your name, a name you chose long before you ever decided to run for Congress, and that you now have to stop advertising or change your advertising strategy because you’re running … that’s a sure way to discourage people from running for office, and I don’t think that’s what Congress intended when it passed this statute,” he said.

The statute in question is the Federal Election Campaign Act, which defines “electioneering communication” as any broadcast, cable, or satellite communications that refers to a clearly identified federal candidate; is broadcast or otherwise distributed 30 days before a primary election or a convention or caucus of a political party or 60 days before a general election; and is targeted to the relevant electorate.

Brown, the CEO of Leigh Brown & Associates, a real estate firm based in Concord, North Carolina, announced her intention to run in the special election on March 15. Shortly afterwards she sought an advisory opinion from the FEC on how she proceeds to advertise her business during her race.

For the past 13 years, Brown has written and recorded her own commercials, which she has told the FEC are a “core component of the company’s marketing efforts” and responsible for at least 10 percent of her annual commission revenue.”

She also noted in her request to the FEC that her company has a longstanding contract with WBT, a commercial radio station in Charlotte, North Carolina, for the airing of her advertisements throughout the calendar year.

“The specific content of the ads has varied over the years, but they generally follow a similar template, featuring discussion of a real estate issue relevant to the Charlotte real estate market and the number of houses Brown’s team sells, and they consistently include two closing slogans: “I’m interviewing for a job … I want to be your realtor” and “There is a difference when you call Leigh Brown.”

Brown’s most recent ads began airing in the Charlotte area on March 5, 2019, 10 days before she announced her candidacy, and neither in any way references her run for Congress.

But those particulars did not resolve concerns held by Commission Chair Ellen Weintraub, a Democrat, who killed proposal after proposal offered by Torchinsky, his co-counsel Jessica Johnson and the other members of the FEC panel.

In Weintraub’s view no advertisement for the business would qualify for an exemption so long as Brown’s voice and first-person presence were a part of it.

“However, if somebody else’s voice was used in the ad with the same text as proposed in the alternative version [replacing words like “I” with “We” and “My” with “Our”], that would move it a step further away from the candidate and that would satisfy me.”

Torchinsky countered by saying he believed the notion of the unidentified voice of a candidate appearing in an advertisement had been squarely addressed by the federal court in Alexandria, Virginia, in Hispanic Leadership Fund v. FEC.

In that case, the commission held that advocacy ads made by the fund were electioneering because one of them featured the unidentified voice of then-President Barack Obama. The federal court reversed the commission’s ruling.

“In this case, when the voice on the ad says ‘We’re Lee Brown and Associates … we’d like to be your realtor’ unless there is overwhelming evidence that everybody knows that voice … it’s just not clearly identifiable [as the candidate],” Torchinsky said.

“For that reason, I think the commission is compelled to conclude that the alternatives are not electioneering communications, at least in accordance with the judgment against the commission in Hispanic Leadership Fund,” he said.

Commission Vice Chair Matthew Petersen, a Republican, took a different tack, saying any concerns he might have had about the ads being in some way political was allayed by the fact Brown had used the same format and nearly the same wording, for years.

“If her most recent ads had radically changed in focus, that might have been a concern, but based on the evidence before us, there’s nothing to suggest her advertisements have been manipulated or changed in any way to promote her candidacy.”

Attorney Jessica Johnson pointed out that Brown went to great length not only to make her business ads neutral and distinct from her campaign, but even hired a completely different vendor to handle her advertising in the political space.

Weintraub, however, remained unconvinced.

This inspired some push back from Commissioner Caroline Hunter, a Republican.

Noting that she shared Petersen’s view on the advertisements themselves, she said she also agreed with Torchinsky’s assertion “that if this is something the commission can’t agree on, at least in part, it will discourage people from running for political office.”

“That’s a really valid concern,” she said.

“What we have here is somebody who ran a business for many years before they decided to run for Congress, and now they’re not allowed to operate their business. It just makes no sense to me whatsoever,” Duncan continued.

She then turned to Weintraub’s contention that the Lee Brown and Associates ads were done is someone else’s voice.

“Presumably, the person doing the voiceover for the ad would also be someone who works for the company. Why wouldn’t that be an electioneering communication under your theory?” Duncan asked. “I mean, just because somebody else is saying it, the advertisement still has the candidate’s name in it.”

“The question is whether the voice, in the context of the ad, constitutes a reference to a clearly identified candidate,” Weintraub said.

“And it only does so if it’s the candidate speaking in this context, even in this case, where the same person has been voicing ads for her company for 13 years?” Duncan asked.

“Yes, I think so,” Weintraub said.

The question as the room cleared was where Brown stood in terms of advertising her business, and whether, if she runs real estate ads after Sunday, she’ll run afoul of the FEC.

“The agency reviews each enforcement matter on a case-by-case basis,” said Christian Hilland,

the commission’s deputy press officer. “If the Commission finds that a violation occurred, possible outcomes can range from a letter reiterating compliance obligations to a conciliation agreement, which may include a monetary civil penalty.”

Hilland noted that a vote of at least four Commissioners is needed at every stage, including whether to (1) find reason to believe and initiate an investigation, (2) find probable cause that a violation has occurred or is about to occur, (3) settle a matter, or (4) authorize filing a lawsuit. 

“If there are not four votes at any stage, the commission will not proceed to the next step of the process,” he said.

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