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ELECTIONS
John Kasich

Experts: John Kasich political ads chart new territory

Fredreka Schouten
USA TODAY

WASHINGTON — One of the latest television ads promoting Ohio Gov. John Kasich’s presidential campaign opens with ominous, sepia-toned images of Islamic State fighters and Russia’s Vladimir Putin.

Republican presidential hopeful and Ohio Gov. John Kasich

"Who is it that's got the foreign policy experience to deal with what has become an increasingly complicated world?" Kasich asks, looking at the camera. "No one really has that experience, except for maybe one,” he adds, before the narrator closes with “John Kasich’s for us.”

The video doesn’t come from the Republican’s campaign, however. Instead, it’s produced and funded by an outside group that can raise unlimited amounts to back Kasich’s candidacy. And in a bold test of rules that bar candidates from coordinating with independent groups, Kasich shot footage for this and other ads in concert with the outside group.

Kasich’s camp and his allies argue that’s permissible because he was not officially a candidate when he taped material for the commercials.

“In order for there to be coordination, there must be a candidate,” Connie Wehrkamp, spokeswoman for the pro-Kasich group, said in an email. “The footage featuring Gov. Kasich was filmed before any decision was made to seek the presidency.”

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Wehrkamp and Kasich campaign spokesman Scott Milburn said there’s been no coordination between Kasich’s campaign and the two outside groups supporting his campaign, New Day for America and New Day Independent Media Committee Inc., since he entered the race.

As a candidate, Kasich cannot raise more than $2,700 from an individual for the primary. The groups supporting him face no contribution limits, and together they raised roughly $11.7 million through June 30, according to their filings with the Internal Revenue Service.

Most election lawyers say Federal Election Commission rules banning coordination between candidates and outside groups apply narrowly to paid advertising. Coordinating with outside groups on ads before a candidate formally announces is the latest example of the ways the 2016 contest breaks new ground, they say.

“This doesn’t pass the smell test,” said Paul Ryan, a lawyer at the Campaign Legal Center watchdog group said of the pro-Kasich ad. "He was a candidate at the time he filmed this, even if he denied he was a candidate.”

Earlier this year, Ryan’s group has lodged Federal Election Commission and Justice Department protests about another White House contender, former Florida governor Jeb Bush, who delayed entering the race until June and spent much of the first part of this year raising money for Right to Rise USA, a super PAC raising big sums to advance his presidential bid.

Kasich formally declared his candidacy July 21.

Neither Wehrkamp nor Milburn said they could provide the specific date on which Kasich did the taping. The Cincinnati Enquirer reported on June 28 that Kasich was slated to shoot commercials that week with California-based ad consultant Fred Davis with the goal of banking the footage for a later date.

New Day for America reported paying Davis’ firm, Strategic Perception, $60,000 on June 5 and another $148,835 on June 26, its IRS filings show.

Other candidates are facing questions about their reliance on outside groups. A super PAC supporting Republican Carly Fiorina’s bid, for instance, sends teams of political operatives to work her campaign events — guided by her campaign’s publicly available Google calendar.

Before announcing her candidacy, Fiorina also taped interviews for a documentary produced by the super PAC backing her campaign, but the footage has not yet aired on television. So far, the super PAC has made it available online and sponsored screenings for Fiorina backers in four states.

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The Federal Election Commission, whose members are locked in 3-3 partisan gridlock on most enforcement issues, are unlikely to weigh in before the election is over, if at all.

The moves by Bush and Kasich to openly coordinate with independent committees until they formally became candidates marks a new interpretation of election rules, said Kenneth Gross, a lawyer who specializes in campaign finance.

“If you take this to its logical extreme, you could run a campaign out of a super PAC without ever becoming a candidate,” he said. “This is uncharted territory.”

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