Claremore Daily Progress

May 24, 2012

FEC postpones Mullin advisory opinion ruling

Legality of the request called into question

Salesha Wilken
Staff Reporter

Washington D.C. — The Federal Election Commission requested an extension today to review 2nd District Congressional Candidate Markwayne Mullin’s request for an exception to federal electioneering laws.

The Commission could not determine if Mullin’s advertising with Mullin Plumbing qualified for an exception and if such an exception would be legal under current laws. 

These laws such as the Bipartisan Campaign Reform Act of 2002, were put into place by Congress to prevent a candidate from using a business to gain an unfair advantage like increased name recognition during a campaign.

Additionally, the use of corporate resources like advertising gives a candidate the opportunity to take advantage of tax shelters not available through political advertising, according to the BCRA.

A ruling should be made on May 29, as the 30-day window for electioneering communications will begin on May 27 for all District 2 candidates.

In the draft provided to the commission prior to today’s meeting the commissioners had agreed Mullin would be electioneering and therefore be required to meet disclosure requirements in the 30 days prior to the June 26 primary election.

“I am certainly sympathetic to the request,” Commissioner Matthew Peterson said. “Our hands are tied”.

Jason Torchinsky, attorney for Mullin objected to the draft opinion and that following the law would present a hardship for Mullin.

“It puts my client in a very awkward position,” Torchinsky said.

Torchinsky explained that the requirements would take 10 percent of a 30-second commercial to read the mandatory disclosures.

Peterson’s response to the objection was simple, “this would be good argument for court”.

“I don’t believe it is enough for us to carve out an exception,” Peterson said.

He questioned the impact granting this exception will have on future decisions and asked Torchinsky to “help me with the justification”.

Torchinsky continued to explain that Mullin’s commercials are similar to other cases including that of previous candidate Russ Darrow, a car dealership owner in Wisconsin.

However, the commission explained the case was different than Mullin’s and his [Mullin] appearance in the commercials and statement, “Hi, I am Markwayne Mullin” clearly identifies a candidate.

Commissioner Donald McGahn explained that Torchinsky’s request included proof the candidate looks in the camera and states his name, which falls squarely within the act. Additionally, the advertisements and radio show are tied a significant number of voters, which as an issue specifically addressed in the current law.

“Statue says what it says and this request comes in reach of that,” McGahn said.

The question surrounds the original purpose of the law and what was the legislative intent of Congress in passing this law.

Torchinsky asked the Commission to issue an exception based on precedent.

“If we had just run the ad and been here for on an enforcement action then it sounds like we would have had a three-three split,” Torchinsky said. 

“He continued to explain that instead we have put the candidate and the company through six to eight months of uncertainty.”

 The Commission rules should not apply to bona fide commercial advertisements, he said.

Torchinsky continued to explain that these requirements serve no government interest.

“All that is true almost, I am not sure we can say it serves no government purpose,” McGahn said.

This issue had previously been brought before the Supreme Court with “Citizens United vs. the FEC”. The court ruled the Citizens United ads were electioneering communications.

The Commission continued to listen to Mullin’s case and asked for clarification of the actually request being made.

“Are you looking for clarification of what the disclaimer will be,” McGahn said, “or are you wanting to avoid that all together.”

“In my ideal world I would love for the Commission to say in this context there is an exception and no electioneering communication,” Torchinsky said.

The Commission determined more time will be needed to decide the long lasting effects of the decision.

If the Commission moves against the statute and the draft opinion then it will open the door for future candidates to use business advertising in this manner during a campaign.

Torchinsky continued to argue that Mullin does not appear in the ads as a candidate.

He also stated that Mullin has not increased the amount of Mullin Plumbing advertisements during the campaign.

“The volume of advertising has not increased during the time period in which he [Mullin] is a candidate,” Torchinsky said.

The Commission did not ask Torchinsky to verify the frequency of the advertisements.

Additionally, Torchinsky testified that Mullin has been running the ads and hosting the radio show for the past 10 years.

Mullin was contacted by the Claremore Daily Progress to verify the time period.

“I am not sure how long I have been doing the show. It has been a long time probably eight or nine years,” Mullin said.

Mullin's radio show "House Talk" has been on the air since June 2009 according to Gene Vidler, Market Manger for Cox Communications. Prior to that time period Mullin had been working with Journal Broadcasting and KRMG. In total Mullin has been hosting or a guest speaker on the radio for approximately nine and half years total, according to campaign officials.

Mullin has been advertising for an extended period of time prior to the election.

To conclude the agenda item the statute was read and a final question was raised about the identification of the federal candidate.

“Are we going to say that a candidate talking in the camera is not clearly indentifying a federal candidate because he doesn’t say he is a candidate,” McGahn said.

McGahn concluded the item by calling into question the commission’s authority to provide and exclusion to Mullin in an advisory opinion.