Misleading Attack in New Jersey Senate Race
June 30, 2006
Democrat Bob Menendez inaccurately portrays Republican Tom Kean as "getting around" a law that doesn't even apply to him.
Summary
Democratic Sen. Bob Menendez is attacking his Republican challenger, state Sen. Tom Kean Jr. for circumventing New Jersey election law by accepting campaign contributions from casinos and "funneling" the money to his Senate campaign.  Menendez inaccurately implies that this action is devious, saying Kean found "a way around the law."

In reality, no "funneling" was necessary as Kean's actions do not violate any law.  New Jersey campaign finance laws do not apply to candidates seeking federal office, and other New Jersey politicians running for federal office are doing the same thing.

Analysis
On June 22 the Bob Menendez for Senate campaign released the 60-second radio ad "Outrageous" in both the Philadelphia and New York media markets.

Menendez for Senate Ad: “Outrageous”

Announcer: Casinos are one of the most highly regulated industries in New Jersey . So, to limit their influence over lawmakers, it's illegal for state legislators to take money from casinos.
But there's always someone who will try and find a way around the law.
Like Tom Kean Jr.
Did the law prohibiting state legislators from taking casino money stop Tom Kean Jr.? No. Tom Kean Jr. took thousands from gaming interests and funneled the money into his U.S. Senate campaign.
And Tom Kean Jr. still votes on laws affecting casinos, even though he took thousands from them.
No wonder the Trenton Times called Kean Jr.'s scheme "outrageous."
Tom Kean Jr.: Just another Trenton politician taking care of himself instead of standing up for us.
Bob Menendez: I'm Sen. Bob Menendez, and I approved this message because we need a senator who will stand up for New Jersey . No matter what.
Announcer:  Paid for by Menendez for Senate.


The ad says that Tom Kean, a current state senator and Republican candidate for U.S. Senate, found a "way around the law . . . prohibiting state legislators from taking casino money." The ad also says that Kean took thousands of dollars from casinos and "funneled" the money into his Senate campaign.  Actually, what New Jersey law prohibits is accepting casino money when running for state office. Kean's actions as a federal candidate are perfectly legal and have been used by New Jersey Democrats as well.

Federalism at Work

It is true that Kean's campaign has accepted contributions from gaming interests – though not directly from any corporation, which would be prohibited by federal law. He took them from political action committees (PAC) connected to gaming interests.  According to Federal Election Commission (FEC) public disclosure forms, the PACs of International Game Technology, a supplier of gaming machines based in Reno, Nevada, and Harrah's Entertainment Inc., the Las Vegas-based gaming giant that has casinos there and in Atlantic City, among other places, each donated $5,000 to Kean.  Accepting this donation for his federally regulated Senate campaign is completely legal.

Casino donations to state candidates are illegal under New Jersey law. The  New Jersey Casino Control Commission, which regulates New Jersey casinos, consists of five members who are appointed by the Governor and confirmed by the State Senate.  It is this relationship between the Commission and State Senate that led the state legislature to pass the Casino Control Act in 1977, which states:

5:12-138 Prohibited political contributions: No applicant for or holder of a casino license, nor any holding, intermediary or subsidiary company thereof, nor any officer, director, casino key employee or principal employee of an applicant for or holder of a casino license or of any holding, intermediary or subsidiary company thereof nor any person or agent on behalf of any such applicant, holder, company or person, shall directly or indirectly, pay or contribute any money or thing of value to any candidate for nomination or election to any public office in this State, or to any committee of any political party in this State, or to any group, committee or association organized in support of any such candidate or political party. L.1977, c. 110, § 138, eff. June 2, 1977.

Yet  this state law does not apply to candidates seeking federal office.  According to Section 453 of the FEC's Federal Election Campaign Laws:

§ 453. State laws affected: (a) In general. Subject to subsection (b), the provisions of this Act, and of rules prescribed under this Act, supersede and preempt any
provision of State law with respect to election to Federal office.

Because Kean is now campaigning for federal and not state office, his US Senate campaign isn't bound by New Jersey's campaign finance laws and must only conform to federal law, which allows registered PACs to contribute to federal campaigns (up to $5,000 per candidate per election). 

The Menendez ad misleads by using such words as "funneling" and "found a way around." He might have avoided this by saying something like, "Kean's casino donations would have been illegal if he was running for state office." He would even be entitled to state an opinion that "This casino money violates the spirit of New Jersey law," and leave it to viewers to decide whether they agree or disagree. Indeed, a  newspaper editorial Menendez refers to in his ad says state legislators (not just Kean, as Menendez implies) who accept casino-connected money "are flouting the spirit of state law, and it's outrageous." But as it stands the ad says that Kean is "getting around" a law that in fact doesn't apply to him at all.

Don't Look Now...

Though Menendez attempts to characterize Kean as another "Trenton politician taking care of himself," there appear to be plenty of politicians from his side of the aisle following Kean's lead.  The Bergen County Record reports that no less than three Democratic state officials have accepted donations from gaming interests for their current or future federal campaigns.

- by James Ficaro

Sources
Josh Gohlke, "Menendez Ad Hits Kean on Casino Contributions," Bergen County Record, 23 June 2006.

"New Jersey Casino Control Act," New Jersey Casino Control Commission.

Federal Election Commission, "Federal Election Campaign Laws: Compiled by the Federal Election Commission October 2005."