Is congressional candidate Markwayne Mullin touting himself to voters or to customers? That was the question before the Federal Election Commission earlier this week, where the Oklahoma businessman is seeking permission to have TV ads for his plumbing company not treated like campaign communications. But some of Mullin's neighbors say his plumbing business figures so heavily in his campaign ads that it's impossible to distinguish the two.
In comments to the FEC, some have even questioned Mullin's motives for becoming a candidate in the June 26 Republican primary for the seat occupied by retiring Rep. Dan Boren, D-Okla. One suggested his real goal might be to advertise for his plumbing company.
Federal election law requires organizations–including for-profit companies–that mention federal candidates in advertisements to disclose them as electioneering communications within 30 days of a primary or 60 days of a general election. While commercials promoting a business might not seem to qualify, Mullin touts his business experience in his campaign's ads.
Rather than come to an agreement, FEC commissioners punted Wednesday on where to draw the line between commercial and political speech.
The Mullin campaign's TV ads, which conclude with a disclaimer identifying them as such, are about the success of his plumbing company, how he grew it from six to 120 employees, and it prominently features the company's red plumbing truck. His print ads also feature the plumbing truck. One such ad criticizes the 2010 health care reform pushed by President Obama. The headline is: "We must STOP Barack Obama's socialist agenda." The flyer also boasts: "Mullin Plumbing is the perfect example of how federal heath-care mandates kill jobs, drive up costs and worsen Americans' health-care options. Businessman Markwayne Mullin has lived it, and will work to repeal Obamacare."
Mullin, who's raised over $600,000 in his bid for the June 26 GOP primary–more than any of his rivals–sought advice from the FEC on whether his company's ads would require the same kind of disclaimers and disclosures as his campaign ads. He also wanted to know whether his weekly radio program would qualify for a media exemption to the electioneering communications rule.
On Wednesday, the FEC did not determine whether the plumbing company ads, which have been running for almost a decade, were electioneering communications—which have to be reported to the FEC if they occur right before an election, mention a federal candidate, are targeted at voters, air on TV or radio and aggregate to over $10,000. The Oklahoma primary is on June 26, so if the ads are electioneering communications, the company will have to begin reporting them. The total cost of the TV and radio ads purchased by the plumbing company amounts to about $40,000 per month, according to Mullin's lawyer.
In response, Mullin said on Thursday that he would remove himself from the company's TV ads in order to avoid labeling them as political ads, The Oklahoman reported. The ads would instead feature his wife and others.
“I don’t believe for one second that Mullin Plumbing advertisements need to be changed, but once again I’ll go above and beyond to comply with these burdensome regulations," he told the paper.
Three Democratic commissioners wrote that the plumbing ads, which feature Mullin fixing a sprinkler or replacing pipes under a sink, would indeed be electioneering communications. They write that because the campaign ads prominently feature the plumbing company, Mullin has placed his business "squarely at issue in the campaign." As a result, they are not unquestionable unrelated to the election. The commissioners alude to comments by Oklahomans who claim that the ads do not make clear whether they are for the business or political office.
On the other hand, two GOP commissioners, chair Caroline Hunter and Donald McGahn, wrote that Congress gave the FEC a limited carve out to provide exemption to the electioneering communications law when ads are "wholly unrelated to an election." Commisioner Matthew Petersen did not vote.
Mullin told Tulsa World that he is "frustrated" by the FEC not coming to a decision. The campaign has so for not returned a phone call or email.
That also leaves open some voters' suspicions that Mullin is more interested in promoting his company than his candidacy. While using campaign funds for personal use is illegal, Paul Ryan, an attorney at the Campaign Legal Center, said to his knowledge the FEC has never been asked about a situation in which a candidate's campaign funds might be used to promote a business.
But it's unlikely that the FEC would rule that Mullin's campaign ads are illegal, Ryan added. That's because they are not about customer satisfaction or his plumbing abilities—typical of a business ad—but rather about Mullin's management skills in getting his company out of debt, unlike the federal government, Ryan wrote in an email.
In contrast, a clear cut example of using campaign resources for personal use would be a current complaint filed Wednesday against Rep. Ed Towns, D-N.Y, Ryan said. The Campaign Legal Center filed a complaint with the FEC that the campaign has been paying to lease an Infiniti that was used by his wife to run errands.
The FEC has made exemptions for business advertising before—in an advisory opinion in 2004 filed by a candidate named Russ Darrow, Jr. running for Senate in Wisconsin. The FEC ruled that ads by a car dealership named Russ Darrow Group, operated by his son Russ Darrow III, were not electioneering communications because they did not refer to the candidate but to the dealership or the candidate's son.