PROVIDENCE — In the days before the Democratic primary for governor, the Latino Victory Fund launched an ad aimed at boosting Secretary of State Nellie M. Gorbea and blasting her opponents.
But as Tuesday’s primary approaches, the attack ad is drawing fresh attacks from Gorbea’s rivals while also receiving criticism from government watchdogs.
John M. Marion, executive director Common Cause Rhode Island, on Friday said his organization is considering filing a complaint with the state Board of Elections over the ad, which is titled “Who’s Worse?”
Common Cause pushed for a 2012 political spending transparency law in response to the US Supreme Court’s 2010 Citizens United decision, and the law requires ads by outside groups to list the top five donors to those groups. But Marion noted that the Latino Victory Fund ad did not list its top donors.
“That is clearly violating the state’s disclosure law,” Marion said. “That is one of the issues we are considering filing a complaint about.”
Yvonne Gutierrez, managing director of the Latino Victory Fund, said in a statement that the group has already publicly disclosed its donors to the Federal Election Commission and with the state Board of Elections.
“Latino Victory Fund, which is organized as a federal PAC with the Federal Election Commission, is not required to further list its top five donors on ads because, under Rhode Island law, that requirement applies only to entities organized as 501(c) or 527 organizations with the IRS” she said in the statement.
Marion noted the Latino Victory website says “Latino Victory is the only national Latino organization that is a 501(c)(3), 501(c)(4), and Super PAC.”
Gorbea campaign spokeswoman Molly O’Brien responded to questions about the Latino Victory Fund ad, saying, “That is an (independent expenditure) and so we don’t have any information about their decision making.”
Marion said Common Cause also is looking into whether a message placed on Gorbea’s campaign website violates the section of Rhode Island law that prohibits coordination between candidates and outside groups. If there was coordination, the money spent on the $136,000 ad would be considered a contribution and Rhode Island limits contributions to $1,000 per election cycle, he said.
In May, the New York Times reported that Democrat candidates across the country are placing messages in “red boxes” on their websites to telegraph how they want outside groups to boost their campaigns or savage their opponents. Government watchdogs say that practice represents an attempt to evade prohibitions on directly coordinating with super PACs and other outside groups.
Gorbea’s campaign website contains a message – presented in a red box – that says in part: “When it comes to the Rhode Island governor’s race, voters need to see on broadcast, cable, and OTT (‘Over The Top’ streaming services) that Nellie Gorbea has been an advocate for abortion rights her entire life.”
The Latino Victory Fund ad does not mention abortion rights. Rather, it skewers Governor Daniel J. McKee over an FBI investigation into a multimillion-dollar education contract that his administration awarded to the ILO Group, and it blasts former CVS executive Helena B. Foulkes for donating $500 to US Senate Republican leader Mitch McConnell in 2014.
But an earlier version of the Latino Victory Fund ad, which has since been changed, did include a video of Gorbea that was sourced from the “red box” section of her campaign website.
Gutierrez maintained that Latino Victory Fund had not run afoul of the the law against coordination with campaigns.
“We replaced certain footage in our ad to avoid further distracting from the message that matters to Rhode Island voters: that Nellie Gorbea is the best candidate for governor,” she said. “However, let’s be clear, the First Amendment protects our right to publish publicly available content independent of a candidate’s involvement.”
Marion said Rhode Island has not faced a situation quite like this in the past. “That is a tougher legal question,” he said. “That sort of behavior wasn’t happening when the law was written, so whether or not the law regulates that behavior is a question we have not answered in Rhode Island.”
The Board of Elections would not have a precedent to cite in ruling on whether there was improper coordination between Gorbea’s campaign and the Latino Victory Fund, Marion said. “But this may be the case that creates the precedent,” he said. “It certainly violated what we intended to prohibit with the 2012 law.”
Marion said Common Cause and the Campaign Legal Center drafted regulations in 2019 that would help guide enforcement in this area, but the Board of Elections has not yet adopted those regulations.
The secretary of state’s office has no role in the campaign finance system in Rhode Island, Marion said. “But they do play a big role with respect to transparency and open government,” he said.
Rhode Island Republican Party chairwoman Sue Cienki the GOP also is reviewing state law to determine whether it will file a complaint with the Board of Elections over the Latino Victory Fund ad.