Some candidates have a cozy relationship with super PACs that support them (as close as they can, given rules about coordination). Others are surprised and excited when a super PAC shows up to help out. But sometimes a super PAC raises money using a candidate’s name or picture, but doesn’t do much to help the candidate. In those cases, the candidate may be concerned the super PAC is taking donations that might otherwise go directly to the campaign or to super PACs that are actively supporting the candidate. 2013 Virginia gubernatorial candidate Ken Cuccinelli faced such a situation and decided to sue over it.
The lawsuit, which was filed in federal court, was not based on any campaign finance laws, but on the federal Lanham Act, which is a false advertising statute, and state law claims of false advertising, breach of contract, and unauthorized use of Mr. Cuccinelli’s name and picture. Mr. Cuccinelli sued not only the super PAC, but also all of the individuals associated with the super PAC. The case settled on interesting terms.
First, the Super PAC and its principals agreed to pay Mr. Cuccinelli $85,000. They also agreed to turn over their solicitation lists to Mr. Cuccinelli so he can use them either to raise money for future campaigns or to rent the lists to others. The Super PAC and the company that ran it will also undertake certain “best practices” in future campaigns. These include honoring a request from a candidate to stop using the candidate’s name or picture and maintaining contact information on their website. These terms make clear they apply to other PACs that are clients of the defendant’s company. In this respect, Mr. Cuccinelli may have helped future candidates that find themselves in his spot.
Will every instance of a super PAC raising money using a candidate’s name result in a lawsuit? Probably not. On the All About Advertising Law Blog we have discussed the specifics of what the super PAC said and promised about how it would use the money it raised, and how the Lanham Act and state law claims address those statements. We also discuss the defenses raised to the lawsuit: namely that the solicitations were not commercial transactions subject to false adverting laws at all.
Finally, it is important to remember that campaign communications are subject to First Amendment protections that limit challenges that can be brought even to deliberately false statements. The defendants raised this issue in their motion for summary judgment. Because the case settled before a ruling on the motion, it is not clear what the court thought about this defense.