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CLARK HILL ClafkHUPLC 12S0 Eye Strset NW WariiingtoaOC 20005 ChariaiR. spies T 202.772.0809 T202.S72.B663 F 202.772.0919 F 202.572^683 Email: cipiesadarkhULaiin clarkhlll.coin July 21,2011 (M JeffS. Jordan O CO Supervisory Attorney om 3:« rn b Complaints Examination & Legal Administration po fM Federal Election Cominission Nl s Nl 999 E Street. NW Washington, DC 20463 Til O Ni VU FACSIMILE: (202) 219-3923 Re: MUR 6474: Complaint against Citizens for Josh Mandel Dear Mr. Jordan: We are writing tfais letter on behalf of Josh Mandel, Citizens for Josh Mandel, and Steven R. Cuckler, in his official capacity as Treasurer, and Citizens for Josh Mandel (State Campaign) (collectively referred to as the "Respondents") in response to the Complaint filed in the above- referenced matter by the Ohio Democratic Party ("ODP**) and David L. Duffey, ODP*s Operations Manager. The Complaint was clearly filed fiar publicity and political gain, and is based solely on speculation and innuendo. The asserted facts on their face do not suppon a reason to believe finding in this matter, and tfae Complaint should be dismissed. The Commission may find '^reason to believe" only if a Complaint sets forth sufficient specific facts, which, if proven true, wonld constitute a violation of tfae Federal Election Campaign Act (the "Act"). See 11 CF.R. § 111.4(a), (d). Unwarranted legal (conclusions firum asserted facts or mere speculation will not be accepted as tiue. fi'ee MUR 4960, Commissioners Mason, Sandsbom, Smith and Thomas, Statement of Reasons (Dec. 21,2001). Moreover, the Commission will dismiss a complaint wfaen tfae allegations are refitted witfa sufficientiy compelling evidence. See id. While the Complaint is somewhat unclear, and riddled with unsubstantiated and accusatory language such as "seems," ''presumably," "may faave," and "apparently," h appears to argue that Respondents violated the Act by using resources of Josh MandePs state campaign and his official state Treasurer's office to support fais campaign for die y.S. Senate. These accusations are baseless and unsupported by tfae facts. Each spurious allegation is addressed in tum below. July 21,2011 Page 2 1. Pursuant to a List Exchange Agreement, Mendel's U.S. Senate Campaign's Use of His State Campaign's Emaii List is Entirely Permdssible and Does Nbt Constitute a j Contribution from the State Campaign to the Federal Campaign. The Complaint takes issue witfa Respondent's use of Josh Mandei's State Treasurer campaign's email list, stating that "this valuable uansfer ofthe email list asset was presumably done without cost to the Committee," (Complaint at 2) and tfaat "the Committee appears to be utilizing the e- mail list ofthe State Campaign.. .'without paying for its use." Complaint at 4. The Complaint identifies '^o source of infonnation that reasonably gives rise to a belief in tfae truth ofthe allegations presented," with regard to tfais allegation. See MUR 4960, Cbmrnissioners Mason, Sandstrom, Smitfa and Tfaomas, Statement of Reasons (Dec.. 21,2001). Nl 00 • Q In actiiality, Josh Mandei's U.S. Senate Campaign has a list exchange agreement in place with rsi his State Treasurer Campaign that is wholly in accordance with the Commission's regulations Nl and previous advisory opinions, and whicfa does not result in any aach "ttnnsfer of assets," oa the Complaint myopically asserts. The .Commission faas been clear on tfae issue of list exchange ^ agreements. In Advisoiy Opinion 1981-46 (Dellums), the Commission concluded that: O 1^ a current use ofnames in exchange for a future use ofthe names of fH anotiier political cominittee does not result m a conttibution within 1 the definition of 2 U.S.C. 431(8) (A). Based on the assertion tiiat I this kind of exchange is an accepted practice in the field of direct mail fimdimsiiig, tfae Ck)mmission takes the position tiuit wfaen the Committee piuvides names to another politicBl committee in exchange for its own future use of a correspondhig number of names which are of equal vdue, tfaat tfais constitutes an aims length business transaction between tfae committaes and is not a reportable contribution under the Act Tfais is precisely tfae type of anangement that Respondents have witfa Josfa Mandei's State Treasurer Campaign. Mandei's U.S. Senate Campaign and his State Treasurer Campaign have engaged in an arms lengtti business transaetion where the State Campaign has provided its nnail list to the U.S. Senate Campaign in exchange fbr tfae future use of the U.S. Seiuite Campaign's updated list of a oorrespondiug number of names of equal value. As the Commission has plainly concluded above, such a transaction does not constitbtn a contribution. In light of the list exchange agreement between Mandei's fedend and state campaign, and the fiict tiuit no "transfer of assets" ever occurred between the two campaigns, tha Commission should promptiy dismiss tfais claim. 2. Mandei's U.S. Senate Campaign is not ''Utilizing" the SUte Campaign's Website, and the Senate Campaign's Use of the Domain Name www.JoshMandel.com does not Constitute a Violation ef the Act The, Complaint makes the hollow accusation that Mandei's U.S. Senate campaign "is utilizing the. State Campaign's website and faas taken over the domain name www.JoshMandel.com at no July 21,2011 Page 3 ^j^SOi cost." (complaint at 2. It goes on to allege Uiat "die use of tiie website constitutes anotiier prohibited transfer of an asset of tfae State Campaign." Complaint at 4. This allegation is based entirely on conjecture. As an initial matter, ODP relies on a 1998 advisoiy opinion tiiat has been largely superseded by the Commission's rulemakings on intemet commuuications and coordinated commimications as support for tiiis gmundlesa allegation. Under tiie logic set fortii in the Complaint, tiut "a website that expressly advocates the election of a Federal candidate, such as wwwJoshMjmdel.com. is considered 'something of value' under the Act," it would follow that a website that only expressly advocates tfae election of a state candidate would faave no value to Mandei's federal campaign. How could Josh Mandei's state Treasurer campaign website tfaerefore be "something ^ of value" to Mandei's federal campaign? Moreover, by employing OOP's faulty rationale, all 22 state officeholders or candidates who use tfaeir own names as tfaeir state campaign's wdbsite ^ Uniform Resource Locator ("URL") would not be able to use the same URL for fheir federal' ^ campaign websites iftfaey chose to ran fbr federal office. Nl ^ In reality, Mandel's federal campaign has paid S7,410 to the website development company,. ^ Emotive LLC C'Emotive"), based in Arlington, VA, to host, design, and regularly updaie content ^ fbr Mandei's U.S. Senate Campaign's website. These disbursements are reflected in detail on page 944 of Citizens for Josh Mandei's July 2011 Quaiterly Report, filed witfa the Commission last week.^ Mandei's State Treasurer Champaign used an entirely difierent web hosting and development company. New Media Campaigns ("NMC"), based in Carrboro, NC to host and design Mandei's State Campaign website. When Mandel decided to nm for tiie U.S. Senate, fais federal campaign engaged Emotive to coordinate an aims-lengtii transaction witfa NMC to take oyentfae faesting and development of www.JoghMandeLcom. This was done: for fair market value and in accordance with industiy standacds, and was in full compliance with tfae Act and the Commission's regulatians. ODP provides no &ctual evidence to demonstrate anything to ffae contraiy. Once again, in making tfais contention, ODP presents "no source of infonnation that reasonably gives rise to a belief in tiie tmUi of the allegations presemed." See MUR 4960, Statement of Reasons, supra. 3. Respondents Have Not Accepted a Prehibited Contribution from the Stale of Oldo. The second part of tfae Complaint's "Legal Argument" section presents another legally flawed and tenuous allegation against Respondents tfaat is based solely on speculation. Here, ODP asserts tfaat "Citizens for Josh Mandel may have accepted a prohibited contribution finm the State of Ohio" (Complaint at 5), and that "Mandel has apparentiy been having fais office research and drail releases trumpeting his accomplishments, which are then posted on tfae Committee's website and emailed to tfae old State Campaign email list, just as iftfaey were generated by tfae Committee itself." Complaint at 2. It tfaen declares tfaat "[i]n fais official-capacity as State Treasurer, Mr. Mandel has apparently devoted State resources to publishing materials whieh describe his political accomplishments to date." Complaint at 5-6. l%e Compfaunt goes on to ' See Cidaeiis fin* Josh Maodcl, July 2011 Quarterly Rcpot^ at 944, attached as Exhibit A. CLARK. Hj[ July 21,2011 Page 4 state tfaat "[t]hese materials, and the resources used to develop them are clearly 'goods and ' services.'" and that "fslince tfaese goods and services appear to faave been provided to the Committee at no charge, they constitute an 'in-kind contribution' to the campaign fiom tiie State of Ohio." (Complaint at 6. ODP does not cite any specific actions of Respondents in this section tfaat would constitute a violation of tfae Act or any otfaer federal or state law. As purported "evidence" in support of tfais baseless allegation, ODP offers as Exhibit A to the Complaint a one page printout of an "E-Newsletter Update" finom the official website of tiie Ohio Treasurer's Office, and a one page printout of Mandei's U.S. Senate Campaign's website. It should be noted that these printouts are the sole sources of these allegations mcoiporated into tfae Complaint Ul ^ Lnportantiy, tfae E-Newsletter Update from tfae Ofaio Tkeasurer's website and Ifae update on ^ Mandei's U.S.

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