It looks like a duck and quacks like a duck. But is it subject to campaign spending limits?

Independent gubernatorial candidate Ken Block is crying foul over a six-figure spend on attack mailers that support his deep-pocketed Democratic rival, Helena Buonanno Foulkes, while depicting Block as a conservative-minded duck.

Less than a week before the Nov. 3 election, Block filed a complaint with the Rhode Island Board of Elections, alleging the $228,000 the state Democratic Party spent on attack mailers for Foulkes’ exceeds the limit political party committees can spend on TV, radio and print ads for a single candidate in a year. Block’s complaint, filed Wednesday, also demanded that Foulkes return the “illegal” in-kind contribution. 

“My complaint does not concern a bookkeeping error or a small amount of misplaced money,” Block said in a statement. “This is a six-figure political expenditure to fund negative mailers designed to persuade voters.” 

The in-kind contributions, included in Foulkes’ most recent report to the elections board, reflecting donations and spending from Oct. 6 through 26, paid for a series of mailers linking Block to Republican viewpoints. Block ran for governor as a Republican in 2014, after campaigning as the first statewide candidate for the now-defunct Moderate Party in 2010.

A series of three white ducks stand across the center of one mailer, thought bubbles above each.  

“Obamacare is horrible,” the first reads. “I fought against increasing the minimum wage,” a second states.

The third duck, which has Ken Block’s head on its body, states, “I agree, but I hope they think I’m an independent.”

Below the image, black and red text against a yellow background declares, “If Ken Block walks like a duck and quacks like a duck, he must be a Republican…duck.”

Foulkes’ campaign insists that mailers don’t count toward the spending cap on print ads, reducing Block’s allegations to “whining.” 

 “Unfortunately for Ken Block, mailers like the ones that show he is really a Republican who opposes the [Affordable Care Act] do not count towards the $25K in-kind limit, so voters will continue to learn about how he’s really a Republican who called the ACA ‘horrible,’” Eric Hyers, Foulkes’ campaign advisor, said in a statement on Thursday.

State law offers little clarity.

The 1988 statute sets no limit on the in-kind contributions a political party committee can spend on behalf of a candidate of its party, with three exceptions: TV, radio, and print ads. Those expenses must be capped at a combined $25,000, per candidate, per year.

There is no mention of mailers, nor any definition of print advertisements in the law, an omission Block’s campaign manager, Matthew Schweich, acknowledged.

“In our opinion, in the absence of clarity, you use common sense and look at the rules promulgated by the Board of Elections,” Schweich said in an interview Thursday.

In search of answers 

Block’s campaign looked instead to the 83-page campaign finance manual to support his interpretation of the law. The biannual training guidebook for candidates and party committees includes a list of eligible campaign expenses, with definitions, to help candidates categorize their spending when reporting financial activity to the elections board.

Advertising, according to the manual, “includes but is not limited to: printing, brochures, signs, billboards, radio and television advertising, postage and mailings.”

“It’s clear that the intent of the law is to prevent political parties from spending more than $25,000 on mass communications to the public in support of, or in opposition to, a candidate for office,” Block said in the statement. “It makes no sense to say that a small advertisement in a local paper to a few hundred people should be held to a higher standard of campaign finance scrutiny than a political mailer to hundreds of thousands of voters.” 

John Marion, executive director of Common Cause, disagreed with Block’s position. 

“The common understanding of a print advertisement is something like in a newspaper,” Marion said in an interview Thursday. “A mailer is something separate.”

Marion also distinguished the campaign finance manual referenced by Block’s campaign as distinct from state law. The manual’s definition of an advertisement is likely intended to help candidates understand how to categorize expenses in the election board’s online reporting portal, he said.

“This complaint doesn’t seem to be based in the law,” Marion concluded.

A 2014 advisory opinion by the elections board supports Marion’s interpretation. 

Asked by the attorneys for the Rhode Island Democratic State Committee whether direct mail counts toward the print advertisements subject to the $25,000 spending cap, the elections board advised it did not. The advisory opinion, approved by a unanimous vote of the elections panel at its Oct. 22, 2014, meeting, distinguishes between mass market publication like a print advertisement in a newspaper, and direct mail sent to individual households. 

“Because the statute clearly refers to media expenses, and costs related to direct mail pieces are not media-related expenses, direct mail costs are not subject to the aggregate $25,000 limitation,” the opinion states.

Schweich, of Block’s campaign, said they could find no evidence on the elections board website that addressed the issue.

“It’s pretty incredible to me the board expects candidates to follow rules based on advisory opinions that aren’t posted onto their website, and have not been incorporated into the campaign finance law and are not in the statute,” Schweich said. “To my knowledge, an advisory opinion is not a law. It’s not even a regulation.” 

Block issued another statement Thursday afternoon, calling on the elections board to reject the interpretation of its own, 2014 opinion.

“That defies common sense,” Block said of the 2014 opinion. “The delivery method does not change what the advertisement is.”

Chris Hunter, a spokesperson for the elections board, said the agency’s website reflects all decisions and opinions since 2018, when it was last updated. 

Hunter declined to comment on the complaint otherwise, except to say that complaints are confidential unless or until the elections board finds evidence of a violation. 

The countdown is on 

Stressing the importance of transparency for voters heading into the general election, Block demanded that the elections board respond to his complaint by noon Friday. The board is scheduled to next meet on the morning of Nov. 3, but there is no public agenda.

Marion didn’t think voters cared much either way.

“I don’t think voters necessarily vote on campaign finance issues, more on bread and butter issues,” he said.

Issues like healthcare and wages for hourly workers, topics which the mailers allege show Block’s conservative underbelly.

Block’s shifting party identity has been criticized by both his opponents, Foulkes and GOP nominee Aaron Guckian.

Block insists his views have not changed, and his unaffiliated status grants him the freedom to advocate for voters, not special interests. In a new attack ad that aired on broadcast networks starting Tuesday, Block accuses Foulkes of being a “puppet” for the powerful labor groups that have endorsed and donated to her.

Yet Foulkes allies have helped to fuel her multimillion-dollar campaign operation, allowing the Democratic nominee to exponentially outspend her opponents. In the three-week period that ended Oct. 27, Foulkes raised more than $446,000, spending more than half a million dollars. Block received $14,700 donations in the same time frame, boosting his campaign with a $20,000 personal loan. He spent $234,000.

Foulkes’ substantial fundraising lead has come with problems of its own, namely, more than $11,000 in individual donations that had to be returned because the donors exceeded the $2,000 limit per candidate per year. The state elections board did not fine Foulkes for the violation on the condition she refund the excess donations, Hunter said. 

Yet Marion saw the acceptance of excess donations, some dating back to 2023, as a serious violation.

“Its a pretty big deal because there were so many contributions over the $2,000 limit, and her campaign did not catch any of them,” Marion said. “It speaks to a lack of internal controls in her campaign.”

He continued, “She has raised an enormous amount of money. She has the resources to hire the accountants and campaign finance experts necessary to make sure that doesn’t happen.”

Another day, another complaint 

Block filed a second campaign finance complaint against the Foulkes campaign Thursday afternoon, contesting $90,000 the state Democratic Party spent on digital ads for Foulkes. He cites the same state law limiting party in-kind contributions on advertising to $25,000 per candidate, per year.

Block acknowledged in the complaint that the law does not identify digital or online communications as a form of advertising because the Internet and cell phones were not widely used at the time.

But given the pervasive nature of social media platforms in campaign communications today, it is “reasonable” to include digital communications in the law, Block stated. He pointed to a 2024 regulation adopted by the elections board that defines “qualified internet or digital communication” as a form of advertising.

“Statutory construction requires harmony within the election laws to avoid conflicts in definitions; therefore, the Board should apply their definition to this matter,” he wrote. “The Board of Elections must find that the black letter law establishes a maximum donation by the RI Democratic State Committee to Candidate of Helena Foulkes, for advertising purposes, of $25,000.00.”

Because the state party has already spent $25,000 on print ads for Foulkes, Block argues that Foulkes needs to refund the party $90,000 for the digital communications placed for her campaign.

Angelika Pellegrino, a spokesperson for Foulkes’ campaign, called the complaint “half-baked,” and Block’s campaign “flailing and amateur” in response.

“He’s desperate to distract from the content of the mail, which shows that he is a Republican who opposes the Affordable Care Act and used the exact same language as Trump,” Pellegrino said in a text message Thursday night. “We, of course, believe the RIDP can pay for digital communications, and if asked for a response by the BOE, we will provide one.”

Advisory opinions or other determinations by the elections board clarifying whether digital communications are subject to the $25,000 annual spending cap were not immediately available.