Rove-linked group cites 2007 case to defend its Ohio ad

Ohio’s Democratic party has announced it will be filing a complaint against American Crossroads, the Republican group often associated with Karl Rove which has recently advertised in a handful of key Senate races. The Democrats contend that this ad represents an illegal coordination with Rob Portman’s Senate campaign because it contains three photographs that originated on Portman’s campaign website:

But former FEC Chairman and RNC Chief Counsel Tom Josefiak, the group’s counsel, believes the case is a slam dunk in their favor. In a memo obtained by The Examiner, he writes:

“…American Crossroads produced its Portman ad entirely independently of the Portman campaign, and any content that it did not produce itself was obtained from widely available public domain sources on the Internet, including YouTube. Absolutely no material used in the ad was obtained from the Portman campaign website, or in any other way from the Portman campaign.”

Josefiak cites a 2007 FEC case, New Trier Democratic Organization, in which a group had republished a campaign photograph in a flyer and was accused of coordination. The organization in question argued that the campaign had not given it permission to use the image, and that it had obtained the photograph from a different source. The FEC noted that “there are copies of the same photograph in numerous places in the public domain,” and ruled that the complaint against the group was based on “unwarranted legal conclusions from asserted facts, or mere speculation” about the photograph’s origin.

The ruling is especially significant, Josefiak argues, because it came after a 2006 ruling  that found fault with but applied no penalty to EMILY’S List, a group that backs candidates who support legalized abortion. The group had used a photograph from the campaign of Rep. Betty Sutton, D-Ohio, prompting a complaint. The 2007 New Trier ruling, Josefiak writes, appears to follow the dissenting opinion in the EMILY’s List case, in which two commissioners had opined that the regulation should not apply.

Says the group’s spokesman, Jonathan Collegio: “We are confident in our legal standing and in the appropriateness of our spots, and that the complaint will be dismissed by the FEC.”

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