It’s the kind of tweet the typical person would be inclined to ignore: “CA-40/43-44/49-44/44-50/36-44/49-10/16/14-52–>49/476-10s.” Without some kind of cypher or context, these numbers are indecipherable.
But as Chris Moody uncovered, tweets like these during the campaign season were actually part of a creative scheme to skirt election laws.
Republicans and outside groups used anonymous Twitter accounts to share internal polling data ahead of the midterm elections, CNN has learned, a practice that raises questions about whether they violated campaign finance laws that prohibit coordination.The Twitter accounts were hidden in plain sight. The profiles were publicly available but meaningless without knowledge of how to find them and decode the information, according to a source with knowledge of the activities.
The tactic may seem complicated, but it’s actually pretty straightforward. Republicans were effectively using fake Twitter accounts as a dead drop.
Let’s say you’re a Republican operative working for a campaign and I’m a Republican working for a like-minded super PAC. You have some important, costly polling data that would have a major impact on how I can help your candidate, but you can’t share it with me directly – under existing election laws, that would be considered illegal coordination.
What to do? In this case, you created a dummy Twitter account, where you published the data in a way no one would understand or even be able to look for. In the U.S. House race in California’s 40th congressional district, for example, you’d publish a tweet that read, “CA-40/43-44/49-44/44-50/36-44/49-10/16/14-52–>49/476-10s.”
I could then read the tweets, use my decoder ring to understand the data, and invest my super PAC money accordingly. If anybody asks, you could always say you just published those tweets – publicly available to anyone – and you have no control over who sees them or what they do with the information.
Is this clever? As schemes intended to circumvent federal laws go, sure. Is it legal? Well, that’s tricky.
From Moody’s CNN report:
Posting the information on Twitter, which is technically public, could provide a convenient loophole to the law – or could run afoul of it.“It’s a line that has not been defined. This is really on the cutting edge,” said Paul S. Ryan, senior counsel at the Campaign Legal Center, a nonpartisan organization focused on campaign finance issues. “It might not be legal. It’s a cutting edge practice that, to my knowledge, the Federal Election Commission has never before addressed to explicitly determine its legality or permissibility.”
At least two outside groups and a Republican campaign committee had access to the information posted to the accounts, according to the source. They include American Crossroads, the super PAC founded by Karl Rove; American Action Network, a nonprofit advocacy group, and the National Republican Congressional Committee, which is the campaign arm for the House GOP.
Just minutes after Moody asked the National Republican Congressional Committee about the scheme, the Twitter accounts were quickly deleted.
And that doesn’t seem suspicious at all.
The real trouble, it seems to me, is with the cypher. Using our hypothetical, if you’re the operative and I’m the super PAC staffer, and you publish the tweet for me to read, you might plausibly be able to argue that you weren’t deliberately sending me secret info, since your Twitter message was available to literally anyone who knew where to look.
But in order for me to understand the tweet, wouldn’t you and I need to connect so I knew how to read it?
Kenneth Gross, a former head of the FEC enforcement division who now advises Democrats and Republicans on campaign finance issues, told Moody, “If it truly requires some sort of Ovaltine decoder ring to make heads or tails of the information, then there certainly is the possibility that there was some pre-arrangement. Just making it public is not enough. You have to further meet the requirement of no pre-arrangement or coordination. But it is the burden of the government to demonstrate that.”
The scheme’s participants were not without a sense of humor. One of the phony Twitter accounts was named after Bruno Gianelli, a character from “The West Wing” best known for pushing campaign tactics of dubious propriety.