Posted: Oct. 11, 2006


By Celia Cohen
Grapevine Political Writer

For every grumbling television watcher or radio listener who wishes political spots were illegal, the Delaware Democratic Party is questioning whether some Republican ones actually are.

The Democrats have gone to the state elections commissioner with an inquiry about television and radio advertising that the Republican Party is airing in the attorney general's race between Republican Ferris W. Wharton and Democrat Joseph R. "Beau" Biden III.

The Democrats are asking about the Republican advertising that has been as insistently intrusive as a veg-o-matic infomercial. Call Ferris Wharton, tell him you support his plan. . . . Call Beau Biden, tell him the attorney general isn't just another politician. . . . Paid for by the Delaware Republican Party.

The Republicans see political mischief in the Democrats' action, an effort to cast their party as being on the wrong side of the law in a campaign to decide who will be the state's chief legal officer, and say they are doing nothing they should not.

Elections Commissioner Frank B. Calio promised Wednesday to try to clear up the matter as soon as possible. His office was contacted about it the day before. "It is under advisement. We are consulting with the Attorney General's Office. If I can do it this week, I'd like to," Calio said.

With less than a month to go before Election Day on Nov. 7, the Democrats are going after a prime Republican weapon in the campaign that is living up to its billing as the showcase race, a do-or-die struggle that has the Republican Party trying to reverse a statewide losing streak and squelch a Biden dynasty before it can take hold.

The Republican Party has shouldered the bulk of the advertising buy, airing one television and four radio spots, while Wharton's campaign has paid for one on radio. The Republicans have declined to reveal how much they have spent, but the Democrats estimate the amount exceeds $100,000.

Whatever the total, it benefits Wharton because it frees the candidate from having to raise it -- not to mention how much easier it can be for the party to come up with the money. Under state law, individual contributions to candidates are capped at $1,200 for each election, but the political parties may accept up to $20,000.

It means a candidate has to find a lot more contributors to pay for $100,000 in advertising than a party does.

The Republicans strenuously defend the legality of what they are doing. They say it is nothing different from what they have done in every election since 2000, when they requested an attorney general's advisory opinion through the elections commissioner to clarify what advertising was allowable for a party under state law.

"Six years ago we asked for a ruling from the elections commissioner on these ads. The attorney general issued a ruling," said Richard A. Forsten, a lawyer for the state Republican Party.

The details of the Democrats' inquiry have not been made public, but a ferocious debate is being waged behind the scenes, and the arguments are an open secret.

The Democrats are known to be challenging both the amount the Republicans are believed to be spending and the content of the advertising. The Democrats also are questioning whether the attorney general's advisory opinion from 2000 still applies because of a more recent ruling from the U.S. Supreme Court.

"There is no possible way this can be justified. It's a matter that begs for resolution by the elections commissioner or the attorney general or somebody," said Charles J. Durante, a lawyer who is a past parliamentarian for the state Democratic Party.

The law on campaign financing is complex, a delicate tension between protecting free speech and preventing the corrupting influence of money in elections. As such, there are more restrictions on the contribution side than on the expenditure side.

In this case, for example, the Democrats question whether the Republicans can spend so much money on the political spots because state law prohibits a party from contributing more than $25,000 to a statewide candidate for attorney general. The Republicans say their advertising buy is not a contribution, but an expenditure, which is not limited by state law.

The Democrats also question whether the Republicans have crossed a legal line that allows a party to pay for advertising about issues but not expressly about candidates. The Republicans say their political spots pass muster because they do not use direct phrasing such as, "Vote for Ferris Wharton," but instead deal with issues, as in the spot that says, "Call Ferris Wharton, tell him you support his plan to protect families from violent criminals."

The Democrats, however, call it a sham and say a 2003 opinion from the U.S. Supreme Court no longer lets political parties get away with simply avoiding direct phrasing.

No matter what response the Democrats get from the elections commissioner, it appears they will win this round. Either they kill the Republican advertising blitz, or they get the legal authority to start one of their own.