Senator McConnell doesn't have to approve (or account for) any any uncoordinated messages that happen to use his video.

#McConnelling is here to stay. Senate Minority Leader, Mitch McConnell is cool with it. No word on how Mary Kate and Ashley feel about “Uncle Mitchy.” The meme took root when Jon Stewart called attention to a video put out by Mitch McConnell for Senate. Stewart turned McConnell’s B-roll footage to his own purposes. First, he inserted alternate sound tracks from Simon and Garfunkel, Salt ‘n’ Pepa, Bryan Adams, The Who, Sir Mix-A-Lot, and Strauss. Then he asked viewers to create their own remixes. #McConnelling was born.

At first glance, one might be impressed by McConnell’s embrace of the newest iteration of Stewart’s long-running use of the politician as fodder for late night humor. Beyond McConnell’s good humor, the very existence of the video that formed the raw material for uncoordinated remixes seems odd. Until you consider campaign finance law.

The heart of campaign finance law is the tension between First Amendment rights and the compelling interest in avoiding real or apparent government corruption. Certain limits still apply to candidates’ speech, but current jurisprudence resists restrictions on others’ speech about elections and other issues of public import. As long as third-party groups don’t coordinate with campaigns directly, they have the ability to collect and spend massive sums of money in support of their candidates.

McConnell and many politicians who lack the combination of political significance and terrapinal features that attracted Stewart’s gaze release these easily repurposed videos, hoping that friendly PACs will put the high quality images to good use supporting the candidate. The Kentucky Opportunity Coalition didNaked republishing of campaign materials would constitute a campaign donation under campaign finance law, but the content threshold for modifications that convert campaign materials into third-party speech are low. This is a good thing, or at least a necessary thing in a society that values political speech. Anything that limited the just-shy-of-coordinating PACs would also hit truly independent speakers and potentially opposing voices.

The risk, of course, is that unfriendly or unhelpful speakers might make use of the video too. Most politicians won’t draw a viral comedy response, but McConnell isn’t likely to be the only one to find primary or general election opponents using the B-roll to make their own points. Count on some of the amateurs to run afoul of other IP rights in interesting ways during the 2014 and 2016 campaign seasons. The nods and winks of campaigns releasing DIY commercial footage may resemble coordination to those on the other side, but by publishing these videos to the world, McConnell and others make them equally available for supportive and subversive uses.

This fits nicely within the Supreme Court’s prescription of “more speech” as the antidote to problematic campaign speech. Campaigns can control some of the raw materials that they publish to the world, but they do so knowing that opponents and opportunists have equal access. More speech may not actually be better, but it appears to be legal, and it’s definitely coming.

–Jeff Sheehan

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