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EMA Kiwisaver campaign in breach of EFA?

Written By: - Date published: 6:53 pm, July 23rd, 2008 - 55 comments
Categories: business, election funding, workers' rights - Tags: ,

The Employers and Manufacturers Association’s advertising campaign to defend the ability of employers to make workers pay their own Kiwisaver employer contribution while pocketing the taxpayer subsidy is the most hamfisted and transparently cynical piece of PR I’ve seen in some time.

It’s outragous that the EMA should claim it’s standing up for workers’ rights when it is really just trying to protect bad employers. But it’s not surprising. This is, after all, an organisation that has opposed every single gain made by working people in the last nine years and has an industrial arm that helps employers dismiss their workers and cut their pay.

It’s, therefore, no surprise that the EMA has had to resort to running an expensive advertising campaign (they can’t actually mobilise any workers in favour of their cause) and the media have seen it for the blatantly cynical PR move it is.

What’s more, this whole embarrassing exercise may be in breach of the Electoral Finance Act. I’ve just had a tip-off from a reader who has laid a complaint with the Electoral Commission this afternoon.

It turns out the EMA has failed to register as a third party, which means it has an election spending limit of $12,000. Today’s ad was a half page full colour in the Herald, putting it at around $15,000 according to a recent rate card and pushing the EMA well over their legal spending limit. The ad also entangles the New Zealand Herald, which is in breach for publishing it.

Judging by the text at the bottom of the advertisement it appears the EMA knew this would be the case all along but thought they could get around the law by passing it off as issues advertising, which is exempt under the Act. A quick look at section 5 of the Act shows this is not the case. It’s expected the same ad will appear in the Dominion Post tomorrow morning, at a cost of around $8,500. This ad will also be in breach of the EFA, as will the Dominion Post.

Deliberate attempts to breach electoral law and a cynical attack on workers – is this the best the EMA can do? Crappy ad design too.

[On a related note, if you haven’t heard it already Alasdair Thompson lost the plot up against Trevor Mallard today on Morning Report. I never thought I’d see dear old Geoff have to turn someone’s mic off before, but Alasdair’s behaviour sure warranted it.]

55 comments on “EMA Kiwisaver campaign in breach of EFA?”

  1. Matthew Pilott 1

    These guys are truly pathetic. What Alasdair is arguing is that they want employers to be able give a pay rise of, say, 4%. Employees can then choose to put this into kiwisaver or not. So apparently it’s taking workers’ rights away by refusing to contribute to their superannuation, even though there is a credit paid to employers, that they will pocket if these scum got their way.

    How is it taking away workers’ rights by making employers pay for pay rises out of ther own money, and funding kiwisaver from the employer credit? I understand that it will be a burden in the future, but this ad is just a plain lie.

    Honestly, I know it’s not easy being en employer, but these guys don’t do anyone any favours, they simply reinforce the concept of the nasty, greedy and lying employer out to screw workers for an extra buck.

  2. vto 2

    It’s hardly unexpected that there would be a few punches and kicks thrown by employers given the unscrupulous way this was dumped on them (ffs, who on earth would want to employ anyone these days – not me thats for sure).

    And, the rough and ready nature of this punch and kick indicates some heavy resentment I would surmise.

    [btw, missed the morning report skirmish, but sounds like Mallard may have laid his best on him (Mallard’s best of course being typical politician bullshit)]

  3. Blar 3

    VTO, Mallard called Thompson a thief.

  4. randal 4

    too many pink gins, expense account hotels, restaurant food and bad air in jets have made their brains go soft

  5. Blar 5

    By the way Steve, I’m glad you posted on this. Could you please explain what would be contributed to the ad by publication of Alisdair Thompson’s home address on the ad and on the Elections New Zealand website?

  6. randal 6

    well if he wants to play politics then he must be accountable for his actions…thats the law.

  7. Hey blar – it’s the law. I guess you don’t understand that. Oh and blar? This doesn’t say “authorised by” and that means it would have even been illegal under the ’93 electoral act that National brought in. Given you weren’t even born then I guess you’ve got an excuse for being such a dumbarse…

    vto – the tax credit pays for all of the cost of the employer contribution for the first two years for workers earning less than $55k. So for the first two years while employers are getting more than 4% of an (above average earning) worker they are only paying 3% – that seems like a pretty good easing in period to me. Perhaps if they don’t like it they can f*ck off to Aussie and pay their workers 9%.

    Honestly the next thing you lot will be bitching about is how we lose all our bright young things across the tasman. Cry me a river tards…

  8. Blar. It has been part of electoral law since before the EFA that political parties must have authorisation – name and address – on their ads. That was extended to third parties after National and the Exclusive Brethern trid to run a secret campaign in which leaflets were distributed attacking Labour and the Greens dishonestly with a fake name as authorisation.

  9. vto 9

    So lump it or leave it ay robinsos?

    Well, that is exactly the way it feels.

    And that is exactly why Clark is gone.

    Good one.

  10. randal 10

    hey vto…exactly why are you in business? to make a profit by employing people or to test yourself against laws made by political parties you dont like?. I dont believe you are in business at all but just repeating some anti worker tripe prepared by a pr firm. am I right?

  11. vto 11

    Not that its any of your biz winnie-lover, but I’m in business to pay for a roof over our heads etc. I dont employ people currently for obvious reasons, as stated from time to time. PR firm? you’re the tripe brain.

  12. Blar 12

    Sod you illiterate tard, why don’t you read the bottom of the ad? Specifically, the part that says “authorised by”

    Steve, I’m aware it is the law. What I asked was your opinion on why the democratic process is strengthened by forcing people to put their home addresses on advertisements as opposed to any other form of physical address.

  13. Shit blar – you’re right! Gotta be a first time for everything I guess…

    The home address was probably a bit of overkill but I guess they just wanted to sure the chinless scarf wearers couldn’t play the same fake address game again.

    I’d say the biggest breach here is the spending limit one though – especially if they run another. I guess they could try to argue it’s an issues ad… I wonder what DPF will have to say about this?

  14. Gooner 14

    I’ll put my house on it that this ad is not in breach of the EFA. But, at the moment, my house ain’t worth much!!

    I’m picking that the EMA would have had legal advice on this and I’m also picking Peter Kiely would have played a role in it too, whether he would have been legal advisor or not. Peter knows electoral law inside out and back to front; the EMA won’t be in breach.

    But I’ve been wrong before. Back in 1979 I think!

  15. dave 15

    I doubt that this ad is in breach of the EFA – perhaps Steve you can advise how it is in breach!.

  16. dave. read the post. If you are not a registered third party you can’t spend more than $12K on electoral advertising – this ad costs more than $12K and is clearly an election ad.

  17. Quoth the Raven 17

    A gold roof vto?

  18. Tane 18

    I just clicked! That dude in black is supposed to be Trevor Mallard eh?

  19. Anita 19

    dave,

    From the Electoral Finance Act:

    5. Meaning of election advertisement
    (1) In this Act, election advertisement—
    (a) means any form of words or graphics, or both, that can reasonably be regarded as doing 1 or more of the following:
    (i) encouraging or persuading voters to vote, or not to vote, for 1 or more specified parties or for 1 or more candidates or for any combination of such parties and candidates:
    (ii) encouraging or persuading voters to vote, or not to vote, for a type of party or for a type of candidate that is described or indicated by reference to views, positions, or policies that are or are not held, taken, or pursued (whether or not the name of a party or the name of a candidate is stated); and
    (b) includes—
    (i) a candidate advertisement; and
    (ii) a party advertisement.
    (2) The following are not election advertisements:
    (a) an advertisement that is published by the Chief Electoral Officer, the Chief Registrar of Electors, the Electoral Commission, or any other agency charged with responsibilities in relation to the conduct of any official publicity or information campaign to be conducted on behalf of the Government of New Zealand and relating to electoral matters or the conduct of any general election or by-election and which either contains a statement indicating that the advertisement has been authorised by that officer or agency, or contains a symbol indicating that the advertisement has been authorised by that officer or agency:
    (b) any editorial material, other than advertising material, in a periodical that is written by, or is selected by or with the authority of, the editor solely for the purpose of informing, enlightening, or entertaining readers:
    (c) any content of a radio or television programme, other than advertising material, that has been selected by, or with the authority of, a broadcaster (within the meaning of the Broadcasting Act 1989) solely for the purpose of informing, enlightening, or entertaining its audience:
    (d) any editorial material, other than advertising material, published on a news media Internet site that is written by, or selected by or with the authority of, the editor or person responsible for the Internet site solely for the purpose of informing, enlightening, or entertaining readers:
    (e) a book that is sold for no less than its commercial value, if the book was planned to be made available to the public regardless of any election:
    (f) a document published directly by—
    (i) an incorporated body to its shareholders or members:
    (ii) an unincorporated body to its members:
    (g) the publication by an individual, on a non-commercial basis, on the Internet of his or her personal political views (being the kind of publication commonly known as a blog).

    So if the ad looks like 5(1)a (which it does) and not like anything in 5(2) (which it doesn’t) then it’s an election advertisement, and covered by the spend rules in 63:

    63 Election advertisements not to be published in regulated period unless certain conditions met
    (1) Despite references in this section to a regulated period, this section does not apply to polling day; section 197 of the Electoral Act 1993 applies to polling day.
    (2) No promoter may, during a regulated period, publish, or cause or permit to be published, any election advertisement unless—
    (a) the advertisement contains a statement that sets out the name and address of the promoter of the advertisement; and
    (b) the promoter is entitled to promote the advertisement.
    (3) For the purposes of subsection (2)(b), a promoter is entitled to promote an election advertisement if the promoter is—
    (a) the financial agent of a party, but only if the advertisement is a party advertisement promoted by, or on behalf of, that party; or
    (b) the financial agent of a candidate, but only if the advertisement is a candidate advertisement promoted by, or on behalf of, 1 or more candidates; or
    (c) the financial agent of a third party; or
    (d) a promoter who promotes election advertisements during the regulated period in respect of which expenses are incurred that—
    (i) in total do not exceed $12,000 (inclusive of goods and services tax); and
    (ii) in the case of advertisements that relate to a candidate in the candidate’s capacity as a candidate for an electoral district (whether or not the name of the candidate is stated), do not exceed $1,000 (inclusive of goods and services tax).
    (4) Every promoter is guilty of an illegal practice who wilfully contravenes subsection (2).

    So, in short, it looks like an election advertisement as defined in 5 and it seems unlikely that it cost less than the limits set in 63(3)d.

    P.S. I can’t indent the damned legislation, it might be easier to read from the link.

  20. Tane. I guess so. I love how, not being able to get out an actual protest, they have placards in the ad.

    It’s the worst political ad since that one by Boscawen ‘Answer My Questions Prime Minister!’

  21. Matthew Pilott 21

    “Why won’t you write back to me?!” – Boscawen, the jilted lover. Those were great ads, SP.

    What’s truly awful about this one is that in no way does it explain what’s happening, it doesn’t even mention the law change by name. Can’t imagine it is money well spent. Maybe they were desperate to get in on the anti-EFA action and this was the best they could come up with after one shandy too many a couple of nights ago.

    Anyway I suggest everyone that disagrees with the ad places a call to the people who published it tomorrow.

  22. IMHO it’s not an election ad. It doesn’t call on people to vote, or to support parties based on particular policies. Rather, it pretty explicitly calls on them to lobby politicians (and politicians of all parties). Calling it an election ad would also run counter to the clear Parliamentary intent that this sort of material should not be included. But OTOH, I am not the Electoral Commission; if you want a definitive answer, you’d have to complain.

  23. Anita 23

    I/S,

    Hm… I think the thing that pushed it over for me was the “Mallard” stuff, if it was “Stop the Attack on Workers” I’d be more comfortable with it.

    How explicit does the “vote for” or “vote against” message need to be?

  24. Someone got another link for the Morning Report stuff? Link doesn’t work for me.

  25. Following the truckies lead eh. I guess is the second attempt by a National aligned special interest group this election year to gather public support by deception played off against manufactured popular opinion. Pity we don’t have any real journalism, if people knew they were being taken as fools, having their ignorance exploited, this kind of thing would backfire and do more harm than good for them.

    (edit: looks like theres a problem at the other end of that link, I went to the site and waded through the menus to find it and it came up with the same error)

  26. Patrick 26

    I have to say, after reading the ad, and the legislation, it certainly seems in breach. It’s strongly advocating against Mallard, and sounds like it cost more than $12,000. Sounds pretty clear cut.

    Also, the interview is also available for free on iTunes.

  27. polaris 27

    Clint – thanks for making it clear you think free speech stops at $12,000.

  28. Anita: well, it’s whether a reasonable person would regard it as advocating a vote for a specific party or candidate or a certain type of party or candidate. And IMHO, the first thing any reasonable person would note is that it is primarily directed at encouraging people to contact their MPs and lobby against government policy. The primary purpose isn’t electoral, and any electoral message is implicit and very much secondary.

    Throw in the BORA, and I very much doubt that any court would rule that this is an election advertisement. MPs specifically rejected a clause which covered issue advertising, and for good reason: they wanted this sort of advertising to continue. The staff at the Standard may be uncomfortable with that, but that’s free speech for you. Meanwhile, they may want to consider that in this post they are confirming every fear of the lunatic right about the EFA, and specifically attempting to use the law to threaten and chill political speech they don’t agree with – making the job of those of us who support reasonable limits on the “right” of the rich to buy elections that much harder. Thanks, guys.

    [Tane: I/S. None of us are paid or directed by anyone to write here. We do so in our own time in our own individual capacities. Don’t refer to us as ‘staff’ – I personally resent it.

    For the record, none of us I’m aware of has a problem with issues advertising. The question is where it crosses the line into election advertising.

    I also reject the idea that the right should not have their deliberate breaches of the law held up to scrutiny, especially in a case like this where if the EMA had simply registered as a third party the ad would have been okay.]

  29. ghostwhowalks 29

    I think once they start referring to MPs it de facto becomes an election advertisment.

    If they said , Save the Whales, fill out our petition, or donate to our cause then that would be an issues advertisement in election year.

    As well the comment about the interference is well and truely getting away from any issue about Kiwisaver on its own
    But once they start referring to MPs, they seem to be campaigning for or against those people listed. Especially Mallard.

    Funny , laying a complaint, seems to be stiffling free speech NOW. But not during all the other compliants laid by Farrar and the national Party

  30. djp 30

    I dont see where it encourages anyone to vote (for or against). Seems to be lobbying on a specific issue

  31. monkey boy 31

    You would have to have a heart of stone to read this without smiling.

    …”most hamfisted and transparently cynical piece of PR I’ve seen in some time.”

    Praise indeed, Steve!

  32. ghostwhowalks 32

    djp its not the ‘voting for or against’ thats the problem its the campaigning for or against

  33. Anita 33

    I/S,

    I was interested by the lobbying list; given that a couple of the people on the list have already come out against the amendment it felt a little constructed.

    If the equivalent ad was run by Forest and Bird as “Stop Key’s Attacks on National Parks” with a list of party leaders to ring, would it count as an election ad?

    Would it make a difference if the election was closer? If the EMA were to run this ad three weeks before the election (ignoring, for a moment, the fact amendment will be passed by then), would it be more election ad-ish then?

  34. ghostwhowalks 34

    The answers are simple , if you want to ‘campaign’ then register as a third party, which increases your spending limit and get on with it.
    if you want stop the local community house from closing down or take up the myriad of local , national or international issues you can talk till cows come home about the ins and outs of it.
    BUt campaign for or against an MP , then you are caught by the election advertisement rules.

  35. IrishBill 35

    Whether this is in breach of the EFA or not it will be nice to get some clarification of the law. I’m sure there will be a lot of third parties and lobby groups (from the left and the right) who will be keen to see what the outcome of this complaint is.

  36. insider 36

    If this is an election ad than that is going to pose problems for all those groups that do letter writing and petition based campaigns on specific laws and use advertising to promote them. What about GP campaigns on climate change? The current campaigns on the immigration bill.

    I think I/S is dead right in his analysis. Looks like DPF could be right again…

  37. Draco TB 37

    And IMHO, the first thing any reasonable person would note is that it is primarily directed at encouraging people to contact their MPs and lobby against government policy.

    The first thing I noted when I read it was that it attacked Mallard. Hell, after the first read the only thing I understood about it was that it was attacking Mallard. This, IMO, allows it to cross the line into political advertising (but only just) because it could turn people off voting for him or his party.

  38. Anita 38

    insider,

    If this is an election ad than that is going to pose problems for all those groups that do letter writing and petition based campaigns on specific laws and use advertising to promote them. What about GP campaigns on climate change? The current campaigns on the immigration bill.

    1) If a group’s letter writing campaign and associated advertising was considered election advertising then either they spend less than the unregistered cap or they register as a third party and stick with those rules. No fuss 🙂

    2) There is a huge difference between a campaign to, for example, get more free access to Herceptin (issues advertising – no EFA control) and one which says “Cunliffe kills women! He is a bad bad man!!” (looks more election-ish to me, if so, controlled).

  39. Tim 39

    The EMA standing up for workers’ rights?!? Isn’t that a bit like Brian Tamaki saying he stands for queer rights?

  40. ghostwhowalks 40

    If this was really an ‘issues’ ad. There would only be say a story about a young apprentice who is saving for a car, or a single mum with 2 kids looked after by her mother while she works at two jobs and paying into kiwisaver cuts into her income.
    You know, a narrative that draws people into a story in terms they could understand.

    The way they have stated it their ‘issue’ is stopping mallard. ( who knows why?)

    And the way to stop him ? 4 months out from an election?

    maybe the EMA is going to register as a political party but they want to breach the limit by getting this out of the way before they register!

  41. vto 41

    Q t R – gold? Ha, tinny tin tin.

  42. If the equivalent ad was run by Forest and Bird as “Stop Key’s Attacks on National Parks’ with a list of party leaders to ring, would it count as an election ad?

    Nope, any more than the CAFCA postcards did. If it tells people outright to lobby politicians, doesn’t mention voting

    Would it make a difference if the election was closer? If the EMA were to run this ad three weeks before the election (ignoring, for a moment, the fact amendment will be passed by then), would it be more election ad-ish then?

    A reasonable person might think so. However, again I’ll stress that the law must be interpreted through the lens of the BORA, which combined with the clear parliamentary intent to provide wide scope for issue advertising and agenda-setting, means that the bar is probably quite high.

    if you want a definitive ruling, complain. But I seriously don’t think the EC will agree with you, and it is a complete foot-bullet politically.

  43. Tane 43

    I see I/S is misreprenting our position over on his blog. Unfortunately comments are not allowed so I’ll have to respond here.

    Some facts:

    The Standard has not laid a complaint against the EMA. SP was simply sent a tip-off from a reader and laid out the facts. The tone of the post was not “Ha ha let’s fuck the EMA”, it was “what a bunch of incompetent clowns.”

    No one here is against issues advertising. No one here thought the CAFCA postcards should count election advertising.

    No one is trying to stop the EMA from expressing themselves or buying advertising. But it’s fair to point out if they are pretty blatantly breaching electoral law for no apparent reason.

    And that’s the point. It’s not the EFA stopping the EMA advertising. It’s the fact they’ve chosen not to follow the rules.

    Personally I’d encourage the EMA to register as a third party and properly authorise their advertisements. It’s as basic as that.

  44. Tane – you often ping me for referring to The Standard as a collective, and point out all the authors are individuals who make up their own minds on what to post and say.

    With that in mind, your statements such as “No one here is against issues advertising” seems to be guilty of what I do – assigning a collective voice.

    Incidentally I do not think they are election advertisements.

    Captcha: contract good-will – sounds like an employment policy 🙂

  45. The ad is a picture of Mallard with bright red eyes and it says ‘stop Mallard’s attack on workers’. At best this is a borderline electoral advertisement. It looks like it’s trying to encourage people not to vote for Mallard or Labour to me.

    Remember, all the EMA has to do is register as a third party and then stick to the third party spending limit, it’s not overly burdensome.

  46. Tane 46

    David, perhaps I should clarify. No one here has said anything against issues advertising, no one has said anything to indicate they have an issue with the EMA engaging in issues advertising, and posters here have come out in favour of issues advertising being exempt.

    There may well be one or two posters who have different opinions they haven’t expressed, but that’s hardly relevant to I/S’s argument.

  47. Lew 47

    I, for one, agree with 08wire’s argument that y’all are best to just let this particular issue die, rather than giving it the oxygen of publicity.

    L

  48. ghostwhowalks 48

    The text of the act lists a number of conditions which make ‘material’ an election advertisement.
    Encouraging people to vote or not for a candidate is only ONE of the conditions.

    THis part seems specific to the EMAs ad.

    ..any editorial material, other than advertising material, in a periodical that is written by, or is selected by or with the authority of, the editor solely for the purpose of informing, enlightening, or entertaining readers:…

    Any sort of advertisement seem to be excluded from the informing and enlightening category.

    However looking for their next ad where they crticise Key for his attack on workers rights in taking out the compulsory 4 weeks annual leave… yeah right

  49. Anita 49

    ghostwhowalks,

    Your quote is from one of the subparas of 5(2). To be an electoral advertisement it has to meet one of the criteria of 5(1) and not meet any of the criteria in 5(2).

    I think everyone agrees that it doesn’t meet 5(2) (as you have shown), the question is whether it meets 5(1):

    5. Meaning of election advertisement
    (1) In this Act, election advertisement—
    a) means any form of words or graphics, or both, that can reasonably be regarded as doing 1 or more of the following:
    (i) encouraging or persuading voters to vote, or not to vote …
    (ii) encouraging or persuading voters to vote, or not to vote …
    b) includes—
    (i) a candidate advertisement; and
    (ii) a party advertisement.

    2) The following are not election advertisements:

    So whether it can reasonably regarded as encouraging or persuading voters to vote or not vote is the key test.

  50. Anita 50

    I/S,

    I really struggle with this 🙂 In fact part of my submission on the EFB was that the EC needed to provide training and information to organisations about what was legal and effective issue advertising, cos the whole situation is confused.

    If I were to spend $100k on full page ads in the week before polling saying “Stop Key cutting benefits and wages!!” in huge letters and then go on to rant for column or two about how bad Key’s policies are, but which don’t say “vote” anywhere and do include a list of political leaders phone numbers under the heading “Call” at the very end – I reckon that would have to be election advertising. Does that meet your criteria?

    Where, between that and me running $100k of full page ads in January talking about how important ensuring benefits rise to keep in pace with inflation (which I think is not an election ad), does the line lie?

  51. icehawk 51

    Tane,

    I/S does not appear to be misrepresenting the position I see argued here at all.

    Idiot says that folks at the Standard are “attacking an EMA campaign against the government’s KiwiSaver amendments as a breach of the EFA.”

    Well, yeah. You are. When Mr Pierson says “This ad will also be in breach of the EFA” and when you describe the ads as “deliberate breaches of the law” and argue that the EMA should be “held up to scrutiny” for it, you are attacking an EMA campaign against the government’s KiwiSaver amendments as a breach of the EFA.

    As for this being issues advertising: c’mon. They’re attacking Mallard over an issue, they’re doing it months out from the election, and they’re trying to get people to lobby the govt over it. It seems pretty cut-n-dried to me.

    Idiot’s claim is that attacking people for breaching EFA when they are engaged in issues advertising is exactly what Farrar and associates predicted would happen. Now some here are arguing that in this case this issues advertising *is* electioneering and thus falls foul of the EFA. Yup, that’s exactly what Farrar et al said people would say: their prediction was that issues advertising would get caught in up in the EFAs net because you can’t separate it out from electioneering.And thus you are partaking in helping this prediction come true.

    Fortunately, the EFA is actually a bit more sensible than people here are claiming, so it isn’t actually being breached, and so Mr Farrar et al’s more hysterical complaints will prove ill-founded.

  52. dave 52

    Look this ad is clearly not an election advertisement. Therefore they don’t need to register as a third party if the ad is over the EFA limit.. Therefore the EMA can spend as much as they want to on ads.

    So as this ad is clearly not an electin ad, it would be difficult for SP to state how it clearly is an election ad, given that it is Parliament’s express intention that ads like this should be able to be run without them being declared election advertisements.

    Back to the drawing board for The Standard.

  53. Partisan media have been known to give BIG discounts to the people they favour in order to help them stay under spending limits. Others simply editorialise at great length – even devoting entire sections to their favoured party / politicians – and use news copy as cover for campaigning.

    People reading my comments and my blog will know that I refer to this as the “Overseas billionaries’ EFA exemption” (OBEE). You can I can’t, for example, buy an entire section in the Herald two weeks running to advance our political champion’s cause…..but a company like APN could do it if they wanted to.

    I would have thought it was up to John Key to tell us who he is…..but that’s just me.

    With the OBEE, you can campaign all and all night for your favoured party or candidate as long as you’re “Media”.

    In Canada, where EFA-style laws have been in place for several years, the process of political elites capturing media outlets to by-pass campaign spending restrictions is well-advanced.

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