PROVIDENCE, R.I. (WPRI) — Despite condemnation from ethics watchdogs, Democratic gubernatorial candidate Nellie Gorbea isn’t apologizing for posting a message on her website that tells outside groups what they can do to help her campaign.
Under campaign-finance law, it is illegal for candidates to coordinate directly with independent outside groups such as super PACs which want to spend money to help get them elected.
In recent years, however, campaigns have begun trying to circumvent the law through what has become known as a “red box” — and Gorbea has now joined their ranks.
A New York Times exposé on the practice ran in May with the headline: “The Little Red Boxes Making a Mockery of Campaign Finance Laws.”
“The practice is both brazen and breathtakingly simple,” wrote Times reporter Shane Goldmacher. “To work around the prohibition on directly coordinating with super PACs, candidates are posting their instructions to them inside the red boxes on public pages that super PACs continuously monitor.”
On Wednesday night, Target 12 discovered Gorbea — who is struggling to keep pace financially against her better-funded rivals — has posted a literal red box on her website advising what message should be put in TV commercials for her and where they should air.
“When it comes to the Rhode Island Governor’s race, voters need to see on broadcast, cable, and OTT that Nellie Gorbea has been an advocate for abortion rights her entire life,” the message begins. (“OTT” stands for “over-the-top,” an industry term to describe streaming services like YouTube TV and Discovery+.)
The message goes on to provide talking points relating to Gorbea’s support for abortion rights, as well as links to further information. Also inside the red box is video of Gorbea testifying about abortion that could presumably be used by outside groups in campaign ads.
Rhode Island political watchers generally assumed the red box is aimed at some of the deep-pocketed outside groups which have endorsed Gorbea but have yet to spend big money on her behalf, such as Emily’s List and the Latino Victory Fund.
Aaron McKean, legal counsel at the Campaign Legal Center in Washington and an expert on red boxes, told 12 News: “Red-boxing is a way for candidates and wealthy special interests to coordinate in plain sight.” In Gorbea’s case, he said, “To me, that’s a clear call for TV ads.”
“This is a practice that undermines democracy, because a candidate is so blatantly abusing the law instead of following the law with respect to contribution limits and coordinating with outside groups,” McKean said. “They’re abusing an exception that allows them to publish things publicly in order to get super PACs and outside groups to spend on their behalf.”
Dana Walton, Gorbea’s campaign manager, argued Thursday that the secretary of state’s campaign has no choice.
“The deck is stacked in favor of the wealthy and well-connected,” she told 12 News. “Nellie is running against a self-funder with her own super PAC and an incumbent governor who has hundreds of thousands of dollars of outside money trying to bail him out of his incompetence.” (She was referring to Helena Foulkes and Dan McKee, respectively.)
Walton added: “This is a standard campaign practice.”
McKean shot back: “Even if it’s ‘standard campaign practice,’ that doesn’t mean it’s not coordination and doesn’t mean it’s not illegal.”
He said the only reason campaigns are getting away with using red boxes is because state and federal agencies charged with election supervision are failing to crack down.
John Marion, executive director of Common Cause Rhode Island, said he was disappointed to see the Gorbea campaign using a red box so blatantly.
“Ever since the Supreme Court’s Citizens United decision we’ve been feeling its effects in Rhode Island,” Marion told 12 News, recalling when a federal super PAC was formed in 2013 to raise unlimited money in support of Gina Raimondo’s first gubernatorial campaign.
“Now we have Nellie Gorbea’s campaign using red-boxing to circumvent the prohibition against campaigns coordinating with outside groups,” Marion said.
“This is not the kind of innovation we want to see in our politics,” he continued. “Instead we should be focused on expanding our public financing system to include primary elections so that candidates don’t feel the need to rely on outside groups to get their message out to voters.”
Walton dodged the criticism from Marion, who has worked with Gorbea on a variety of government reform issues during her time as the state’s chief elections officer.
“Nellie agrees with Common Cause that we need campaign finance reform in this country,” she said. “Nellie is committed to making real change happen for Rhode Islanders using all the tools available while strictly following campaign finance laws.”
A 12 News/Roger Williams University poll released earlier this week showed McKee with a slight lead over Gorbea, 28% to 25%, among likely Democratic primary voters. Foulkes placed third at 14%, with 21% of voters still undecided.
McKee’s campaign appears to have a less aggressive version of a red box on its own website. His site has a page called “Media” which can only be found by clicking on “Sitemap” at the bottom of his home page.
It contains a lengthy description of McKee’s current message to Rhode Island voters, focused on abortion rights and gun control, and also features a variety of high-resolution still photos of the governor that could potentially be used in campaign ads.
The message described by McKee’s campaign is now being echoed by an outside group called Forward Rhode Island, which went on the air with a pro-McKee TV ad this week. The Laborers International union has put $500,000 into the group so far.
Alana O’Hare, a spokesperson for the McKee campaign, declined to comment.
McKean said McKee’s page is less of a concern, since it doesn’t contain the same explicit call for specific types of advertising buys that Gorbea’s does.
“This is actually where it’s important for agencies to be strong and make clear rules as to what’s going to count as red-boxing and what isn’t,” he said. “Obviously we oppose clear coordination, but to the extent folks are trying to comply, agencies could very easily come up with rules on what red-boxing is.”
Foulkes — whose campaign said it does not have any sort of red box on its website — sharply criticized her two rivals over the issue Thursday.
“This is exactly the kind of shady politics that Rhode Islanders hate,” Foulkes said in a statement.
“It’s clear that both Secretary Gorbea and Governor McKee are coordinating with these outside groups,” she said. “It’s outrageous and Rhode Islanders deserve better than these career politicians — one who is a puppet for special interests and the other who is responsible for overseeing our elections and should know better.”
Matt Brown and Luis Daniel Muñoz are also seeking the Democratic nomination. The primary is Sept. 13.
Ted Nesi (email@example.com) is a Target 12 investigative reporter and 12 News politics/business editor. He co-hosts Newsmakers and writes Nesi’s Notes on Saturdays. Connect with him on Twitter and Facebook