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Brotherly Love and Spending Limits

Tennessee House candidate Ron Kirkland (R) will report a whopping $857,600 in receipts in his first fundraising report this week, but that filing won’t cover the most interesting campaign account devoted to getting Kirkland elected.

Kirkland is benefiting from a robust independent expenditure effort that so far has spent more than $135,000 on his behalf. It’s being led by Kirkland’s brother, Robert.

The efforts by Robert Kirkland in West Tennessee’s 8th district have raised eyebrows in the campaign community, not just because the seat is shaping up to be a major battleground this cycle.

“It’s highly unusual that you would have an independent expenditure run by a relative of a candidate,” said Marc Elias, a lawyer with Perkins Coie in Washington who specializes in campaign finance cases.

Federal Election Commission rules differ depending on whether a paid communication is coordinated with a candidate or is produced and distributed independently. In general, money spent for coordinated communications are limited and treated like in-kind contributions while independent expenditures are unlimited. Relatives are subject to the same $2,400 contribution limits as anyone else. With Robert Kirkland already well above that amount, some experts think it may be a matter of time before a complaint is filed or the Federal Election Commission decides to take a closer look at the situation in West Tennessee to be certain no coordination is taking place.

“It wouldn’t surprise me if having an independent expenditure reported by someone with the same last name as a candidate would warrant a red flag and trigger a closer look” by the FEC, said Paul Ryan, an attorney at the Campaign Legal Center.

At this stage in the race to replace retiring Democratic Rep. John Tanner, it wouldn’t be surprising if a complaint comes from either side of the aisle.

The GOP primary in the 8th district is turning into a heated affair between Kirkland, Shelby County Commissioner George Flinn, and farmer and gospel singer Stephen Fincher. Fincher is the darling of national party officials, who — perhaps sensing his financial strength — already have taken shots at Kirkland. The winner of the GOP primary will go on to face state Sen. Roy Herron (D) in a general election that will likely be one of the hardest fought of the cycle.

Ryan and other legal experts, interviewed last week when Robert Kirkland’s reports began showing up in the FEC’s reporting system, said a family member could run an independent expenditure on behalf of a candidate, but it would have to be done very carefully. They said the effort would certainly require the help of legal counsel and the family member would have to go out of his or her way to not communicate with the candidate about the IE, campaign messaging, campaign strategy or communication strategy.

Brad Greer, a Tennessee political consultant who is running the IE operation for Robert Kirkland, said that is exactly what is taking place in the 8th district.

Robert Kirkland has retained former FEC Chairman Michael Toner — who currently works at the Washington law firm Bryan Cave, where he serves as head of the firm’s election law and government ethics practice — to ensure that his efforts are in compliance with FEC regulations.

With Toner’s help, Greer said “we have put up more walls in between us and the campaign than most independent expenditures would ever do. We are taking safeguards to make sure we do things to a tee, by the book, so that there will be no question of coordination.”

Candidate Ron Kirkland said the walls put in place have limited his contact with his brother, but it’s not a complete blackout.

“We do talk. He is not in the best of health and I’m not his physician but I advise him on health matters,” Ron Kirkland said of his brother, who has heart trouble. “So, sure we talk as brothers but we don’t talk about campaign things.”

It wasn’t always that way.

“My brother was very interested in my campaign, and then all the sudden he began to be distant,” Ron Kirkland said last week. “I think he looked into it and decided [the IE effort] was something he wanted to do. He didn’t share with me his decision-making process.”

Legal experts also said regulators might be attracted to the Kirkland case because, as recently as January, Greer volunteered for Ron Kirkland’s campaign before leaving to help Robert Kirkland run his IE effort.

“I have known the Kirklands for years and years,” Greer said. “When Ron Kirkland announced he was going to run, I did help in an initial phase with some of the basics. … [That work involved] advising about campaign structure, recommending to Ron Kirkland people he might need to meet and speak with and the ways campaigns are run.”

Greer, who has worked on several campaigns, including Sen. Bob Corker’s (R-Tenn.) 2006 race, said he was never paid for his work for Ron Kirkland and those efforts ended on Feb. 1 “when Robert Kirkland and I made the decision to break away and do our own thing.”

Ron Kirkland acknowledged that Greer helped the campaign in January as a volunteer but said he was never paid.

Another aspect of the Kirkland IE that the FEC might look into is whether the advertisements and material distributed by Robert Kirkland used non-public information provided by the Ron Kirkland campaign. Some experts said the fact that Robert Kirkland used the same “proven, trusted, conservative” slogan in his ads that Ron Kirkland used in his campaign literature would probably not be a violation because that slogan would be considered publicly available information. However if those ads were produced before Kirkland began using that campaign slogan, Robert Kirkland’s use of it might be considered to be in violation of coordination rules.

But while the Kirkland IE presents several potential avenues for investigation, some legal experts said coordination cases are notoriously tough to prove.

“Commissioners have said to me that coordination cases are very difficult to prove absent a smoking gun,” Ryan said.

Another campaign finance expert agreed.

“There are facts here that I could envision leading FEC staff to recommend action … but coordination cases are often considered the black hole of campaign finance enforcement,” the expert said. “It’s hard to prove there is a basis to opening an investigation, they infrequently pan out, and they are incredibly intrusive and expensive for both sides.”

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