Clark Hill PLC

601 Pennsylvania Avenue NW

North Building, Suite 1000
Washington, DC 20004
Charles R. Spies T 202.772.0909
T 202.572.8663 F 202.772.0919
F 202.572.8683
Email: cspies@clarkhill.com clarkhill.com





September 29, 2014

ATTENTION STATION MANAGER

Re: Cease and Desist; Rhode Island Democratic Party Advertisement

Dear Sir or Madam:

On behalf of Allan Fung and Fung for Governor, we write about an advertisement
sponsored by the Rhode Island Democratic Party (RIDP) that is currently airing on your
station. RIDPs advertisement, entitled Working Together is coordinated with Democratic
gubernatorial candidate Gina Raimondo, and constitutes an illegal in-kind contribution to her
campaign in violation of Rhode Island law. While we intend to file a formal complaint shortly
with the Rhode Island Board of Elections (Board of Elections) outlining these violations in
detail, your station is obligated to immediately remove the ad from the air pursuant to the Rhode
Island Supreme Courts decision in R.I. Republican Party v. Daluz, 961 A.2d 287 (R.I. 2008).
Your continued airing of RIDPs ad subjects your station to legal scrutiny by the Board of
Elections and jeopardizes the stations compliance with Rhode Island law and well-established
Rhode Island Supreme Court precedent. We therefore request you immediately cease and desist
airing RIDPs unlawful ad.

RIDPs Ad

RIDPs ad is virtually identical to an ad paid for and sponsored by Ms. Raimondos official
campaign committee that also recently ran on your station, entitled Only One. The only
difference with RIDPs ad is a five second de minimis reference to U.S. Senator Jack Reed at the
end. The remaining twenty-five seconds of the ad is focused entirely on expressly advocating for
Ms. Raimondos candidacy and touting her qualifications for Governor. Nowhere does the ad
actually discuss Senator Reeds qualifications, accomplishments or promote his candidacy for re-
election to the U.S. Senate. This is unmistakably an ad intended solely to support Ms.
Raimondos candidacy.

According to a WPRI.com article, attached as Exhibit A, RIDPs ad is being paid for entirely by
the Rhode Island Democratic Party and not Ms. Raimondo or Senator Reeds campaign
committees. The article states that the commercial is being paid for by the Rhode Island
Democratic Partys coordinated campaign, a joint effort by the partys statewide candidates to
raise money that can be spent boosting the Democratic vote across the ticket. A Raimondo

September 29, 2014
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spokesman said about $90,000 will be spent airing the ad regularly on broadcast and cable over
the next seven days. However, according to public reports, RIDP used its federal account to pay
for the ad despite the fact that the ads sole purpose is to expressly advocate for Ms. Raimondo, a
state candidate, and not for any federal candidates.

Rhode I sland Law

Under Rhode Island law, a political party committee may not make a contribution or
contributions to a state candidate which in the aggregate exceeds twenty-five thousand dollars
($25,000.00) within a calendar year. See R.I. Gen. Laws 17-25-10.1(e). Rhode Island does not
place a limit on certain types of allowable in-kind contributions from a political party to a
candidate. However, the statute explicitly states that the cost of any preparation and airing of
television and/or radio advertisements and the cost of any print advertisements shall not be
considered an allowable in-kind contribution and shall be subject to the aggregate limitation of
twenty-five thousand dollars ($ 25,000). Id.

Rhode Island law also states that expenditures made by any person in cooperation, consultation
or concert with, or at the request or suggestion of, a candidate, the candidate's authorized
political committees, or their agents shall be considered to be a contribution to the candidate,
and that the financing by any person of the dissemination, distribution, or republication, in
whole or in part, of any broadcast or any written, graphic, or other form of campaign materials
prepared by the candidate, the candidate's campaign committees, or their authorized agents shall
be considered to be a contribution to a candidate. R.I. Gen. Laws 17-25-10.1(c)-(d).

Rhode I sland Supreme Court Precedent

In 2008, the Rhode Island Supreme Court addressed in Daluz a legal issue strikingly similar to
the current one. The Daluz case involved a 30-second television advertisement supporting the
Republican candidate for Governor in 2002, which was paid for entirely by the Rhode Island
Republican Party. The Rhode Island Democratic Party complained that the advertisement
violated campaign contributions and expenditures statutesspecifically, the same $25,000
contribution limit applicable in this case. The Board of Elections found that the advertisement
constituted express advocacy for the candidates campaign, in violation of R.I. Gen. Laws 17-
25-10.1(e), and issued a cease and desist order mandating that the Republican Party and stations
stop airing the ad. In its decision, the Rhode Island Supreme Court affirmed the Board of
Elections cease and desist order against the Republican Party due to its violation of R.I. Gen.
Laws 17-25-10.1(e).

Analysis

The RIDPs $90,000 payment to produce and air its ad expressly advocating Ms. Raimondos
candidacy can be seen as nothing more than an excessive, and illegal, in-kind contribution to her
official campaign committee. As an initial matter, the ad is virtually identical to the Only One
ad prepared by Ms. Raimondos campaign, as it uses practically all of the same footage. As
mentioned above, republication of any broadcast or any written, graphic, or other form of
campaign materials prepared by the candidate constitutes a contribution to a candidate. Second,

September 29, 2014
Page 3


as stated in the attached article, RIDP undoubtedly coordinated the ad with the Raimondo
campaign, which also results in a contribution to Raimondo.

RIDP spent $90,000 on the ad, which means it made an excessive in-kind contribution to the
Raimondo campaign of $65,000. Even assuming arguendo that the ad should be partially
attributed to Senator Reed, which is should not, he was only on screen for approximately five
seconds. Therefore, at best, you can attribute only 1/6
th
of the cost of the ad to Senator Reed.
Even under that calculation, $75,000 would be attributed to Raimondo, and the RIDPs in-kind
contribution would still be $50,000 over the limit.

As a separate but also important legal issue, RIDP impermissibly used its federal account to pay
for the ad. RIDP cannot hide behind the coordinated party expenditure limits afforded to U.S.
Senate candidates under the Federal Election Commissions regulations, and simply depict
Senator Reed at the end of an ad as a cynical means to circumvent state law. The ad is clearly
designed to expressly advocate Ms. Raimondo, and not Senator Reed, and RIDP is required to
use funds from its state account for such purposes. This is precisely the type of impermissible
arrangement the Board of Elections and Rhode Island Supreme Court decried in Daluznot only
was the state partys in-kind contribution excessive in that case by virtue of its advertisement, but
the money used to air the ad stemmed from contributions it received from the national party to its
federal account. The Board of Elections correctly recognized the impermissible use of federal
funds to support a state candidate in that case and ordered the Republican Party to cease airing
the ads, which the Supreme Court affirmed.

In light of the foregoing, we request that you immediately cease and desist airing RIDPs illegal
ad supporting Gina Raimondo. Rhode Island law, and Board of Elections and Rhode Island
Supreme Court precedent could not be clearerstate party-funded advertisements that constitute
excessive in-kind contributions to state candidates must not be allowed to air on Rhode Island
stations. RIDPs current ad should be no exception. For the sake of your stations compliance
with Rhode Island law and Board of Elections regulations, we demand you cease airing the ad.

Thank you in advance for your prompt attention to this matter. We would respectfully request
the courtesy of a reply; and if you have questions, or believe that this ad is somehow fit for airing
on your station, we ask that we have an opportunity to, as soon as possible, discuss this matter
further. I can be reached directly at (202) 572-8663, and look forward to hearing of your
decision.

Sincerely,



Charles R. Spies
James E. Tyrrell III
Counsel to Fung for Governor