Shontel Brown’s campaign for Congress is blaring one of the least subtle messages sent to a super PAC since the outside money groups were legalized by the Supreme Court in its Citizens United v. FEC decision.
Brown’s campaign has listed on its website a set of negative talking points about her opponent Nina Turner, all enclosed in a bright red box. Directly under the red box is a quote from Democratic consultant Mark Mellman, the leader of a major pro-Israel super PAC that has consistently spent large sums of money against Sen. Bernie Sanders and his congressional allies. (“Red box” is a campaign industry term, referring to the spot on the website that candidates use to communicate with outside groups like super PACs.).
Both Brown and Turner are competing in a special election in Ohio to replace former Rep. Marcia Fudge, who was confirmed to be President Joe Biden’s secretary for the Department of Housing and Urban Development. The primary in the heavily Democratic district is scheduled for August 3.
With Turner, a former Ohio state senator and Sanders’s most prominent campaign surrogate, running for Congress, the messaging on Brown’s campaign website suggests she’d welcome an outside intervention from Mellman’s independent expenditure operation to blanket the airwaves.
The hybrid super PAC run by Mellman, Democratic Majority for Israel, spent heavily against Sanders during the presidential primary, dropping $1.4 million in its effort to slow him in Iowa and beyond. The super PAC also spent more than $1.5 million attacking Jamaal Bowman and supporting then-incumbent New York Rep. Eliot Engel. (Despite their efforts, Bowman won.) It also threw in $179,000 against Alex Morse, who challenged House Ways and Means Chair Richie Neal in a western Massachusetts primary. DMFI was also bankrolled in 2020 by a super PAC that tried to unseat Rep. Ilhan Omar in her Minnesota Democratic primary; Americans for Tomorrow’s Future, which spent more than $3 million taking on Omar and also worked against Bowman, sent $500,000 to DMFI. There is overlap among donors, as well. A top donor to AFTF, who contributed $300,000 in 2020, also gave $1.245 million to DMFI.
The communication on Brown’s website is a textbook case of red-box signaling, used to communicate with outside groups within the letter of the law. To understand how the signaling works, it’s useful to review the conventions of post-Citizens United campaign practices. Per the Citizens ruling, campaigns cannot coordinate with outside groups and doing so is a clear violation of one of the few bright-line rules in campaign finance. The challenge, then, for a campaign is figuring out how to guide a super PAC or outside supporter’s messaging without running afoul of the laws around coordination. For that, campaigns have developed what is called the “red box.” The candidate posts opposition research or videos on their website about their opponent, which anyone in the public is then free to use for any purpose. The oppo also generally includes messages about both candidates that have tested well in polls, allowing the super PAC to align its communications with the campaign’s.
What makes Brown’s approach unique is both how blatant it is and how beseechingly it directs itself to a particular head of a particular super PAC.
First, the oppo research Brown’s campaign posted is literally inside an actual red box, removing any confusion as to the purpose of the exercise. If any confusion still existed, the linked PDF is called “SB4C Red Box.”
“It’s incredibly common for candidates to rely on resources provided by super PACs and vice versa and so this dance is never explicit, but it doesn’t need to be, because both sides are aiming for the same objective. This is pretty explicit and extreme,” said Lawrence Lessig, after being shown Brown’s campaign site. Lessig is a professor of law at Harvard Law School and an expert on campaign finance law. “They certainly assume that [an Intercept reporter] was not going to notice this.”
The oppo research that appears on Brown’s website has nothing to do with Turner’s stance on Israel; it doesn’t even mention Israel. The criticisms of Turner revolve around her insufficient loyalty to Democrats, citing her lukewarm support for Biden in the presidential election and her refusal to back Hillary Clinton against Donald Trump. The praise of Brown centers on her local record. Yet just underneath the red box are three rotating quotes validating Brown’s support for Israel. The first is from Mellman, and though he wears many hats — most prominently as head of the Mellman Group, a polling and consulting firm — the site labels him “DMFI PAC President.” DMFI endorsed Brown in February but has not disclosed any outside spending on her behalf.
The second is from Michael Siegal, who previously chaired the Jewish Federations of North America and is a donor to Brown’s campaign.
The third is from Jeff Mendelsohn of Pro-Israel America, which was allied in 2020 with Americans for Tomorrow’s Future. Pro-Israel America, the Brown campaign, and DMFI did not respond to requests for comment.
That this type of coordinating-without-coordinating has grown so common undermines the core rationale of Citizens United, Lessig said. “The premise of Citizens United, or the whole line of cases that assume there’s such a thing as independent spending, is that there’s independence. Obviously there can be technical independence, but if both sides are building a strategy based on the same data they’re essentially coordinating,” said Lessig, who authored the book “They Don’t Represent Us: Reclaiming Our Democracy.” “In the context of antitrust we’d have no problem understanding it as coordination.”
And because the independence isn’t real, the debt politicians owe to super PACs is real. “What that means is there’s no real separation that would undermine the sense of obligation or sense of gratitude that a member would feel for the super PAC’s intervention,” said Lessig. “There’s no quid pro quo, but there’s a dependence on the super PAC.”
Correction: May 8, 2021
This story originally reported that DMFI made a transfer of $500,000 to AFTF in 2020. The transfer went the opposite direction.