Models of State Political Advertising Regulations

Models of State Political Advertising Regulations By: Ryan Almquist

Regulations in Texas

Definition of a political advertisement • The Texas Ethics Commission defines a political advertisement as: • “communications supporting or opposing a candidate for nomination or election to either a public office or an office of a political party” • Also includes supporting or opposing an officeholder, political party, or a measure

Disclosure Statement • Law requires all political ads that contain express advocacy to have a disclosure statement • A political ad contains express advocacy if it is authorized by: • Candidate, agent of candidate, political committee filing campaign finance reports • So…any ad issued by either a candidate, an agent of the candidate, or a political committee is required to come with a disclosure statement

Disclosure Statement cont. • A disclosure statement must include • The words “political advertisement” or a recognizable abbreviation • Either the full name of the person who paid for the advertisement or the political committee authorizing the advertisement

Exceptions • Disclosure statements do not need to be included on hats, buttons, pins, etc. involving political advertising

Fair Campaign Practices Act • A voluntary code that a candidate or political committee may choose to sign • Lays out rules of decency and civility that candidates and political committees must follow during a campaign • A person who signs the code may use that fact on his political ads

Restrictions on Content of Advertisements • Few rules on content • Political ads may not misrepresent a person’s: • Identity • Official title • True source of the advertisement

Restrictions for Non-Incumbents • Challengers to the incumbent must: • Make it clear they are seeking election, not reelection • Must use the word “for” immediately before the office the non-incumbent is seeking to indicate that he does not yet hold that office • Only incumbents may use the state seal in their ads

Regulations in Alabama

Accountability • Any paid political advertisement must be identified as a paid ad • It is illegal for a candidate or committee to run a political ad without a notice on the front page of a print ad or broadcast at the beginning or end of a radio/TV ad • Notice must reveal that it is a paid ad and give the identification of the person or committee responsible for the ad

Advertising disclaimer • Unlike Texas, Alabama requires advertising disclaimers be put on smaller items such as buttons, pencils, and T-shirts

Failure to comply with advertising regulations • A candidate or political committee that does not follow the campaign advertising requirements could be found guilty of a Class A misdemeanor • Those responsible could be fined up to $2000 and/or imprisoned for up to a year

Regulations Involving Content in Ads? • Easy for states to regulate fine details in the structure of the ads. • However, it is very difficult for states to regulate the content presented in political ads

Example in Minnesota

Minnesota • 1994 House race Tad Jude vs. William Luther • In the weekend before the election, Jude, a Republican state senator, ran a false ad against Luther, a Democratic state senator

Jude’s False Ad • “In 1990, a Minnesota woman and her two daughters were abducted and repeatedly raped over a two-day ordeal. Despite two prior convictions, the perpetrator, Daniel Patten, was out of prison on a weekend furlough.Patten may never have been released and this crime never committed had legislation authored by Tad Jude been enacted. But Jude's bill was stopped by Bill Luther and his liberal friends in the Minnesota Senate. Bill Luther's willingness to set violent criminals free is putting every woman in Minnesota in danger. Sending him to Congress would be a crime.”

Jude’s False Ad • The truth was that even if Jude’s bill had passed, it wouldn’t have applied to Patten, the criminal, since he was sentenced 4 years before the bill would’ve taken effect • Minnesota has a law outlawing false political advertising, so a special prosecutor presented the case before a grand jury

Jude’s False Ad • The judge later threw the case out • Minnesota Court of Appeals refused to reinstate the indictment because the law was too broad • Somebody could be charged for having “reason to believe” information in their ad was false • The law doesn’t work because it’s hard to prove that Jude knowingly presented false information in his ad • Also, prosecutors cannot get indictments soon enough to control damage from a false ad (in Jude’s case, he wasn’t indicted until almost a year after the ad • All a candidate had to do was lie about knowing information in his ad was false

Example in Washington

Washington State • 1991 “death with dignity” law referendum • “119 Vote No! Committee” gave out leaflets saying the proposal, “WOULD LET DOCTORS END PATIENTS' LIVES WITHOUT BENEFIT OF SAFEGUARDS . . . No special qualifications-- your eye doctor could kill you."

Death with dignity law • The proposal for the law failed • The state Public Disclosure Commission believed the leaflet violated Washington’s truth-in-political-advertising law and took legal action against the “119 Vote No!” Committee • Commission said the proposition did contain standards and it would not lead to killer ophthalmologists

Death with dignity law • The charges were dismissed in court • State Supreme Court later struck down the truth-in-political-advertising law citing its conflict with the First Amendment • Court decision allowed candidates to hide behind the First Amendment while lying in their advertisements

Example in Ohio

Ohio • 1998 Governor race • Republican candidate, Bob Taft, ran a TV ad against his opponent, Democrat Lee Fisher with false information

Taft False Ad • “Ohio's police have endorsed Bob Taft for governor — and rejected Lee Fisher.” • The Ohio Fraternal Order of Police had not endorsed either candidate • “As attorney general, Fisher cut crime-fighting employees by 15 percent.” • Fisher had actually increased the number of crime-fighting employees

Taft False Ad • Fisher complained to the Ohio Elections Commission about the ad • Commission ruled that Taft’s ad violated Ohio’s law against false statements • Taft’s only punishment was bad publicity • Elections Commission issued a letter of reprimand to Taft’s campaign, since it has no power to issue fines • Result: Taft easily won the election

Conclusions • States can easily regulate the format of political advertisements • Requiring specific information in disclosure statements including the author of the ad and the fact the ad is a paid advertisement • States essentially cannot regulate the content in political advertisements • Even with states that have laws against false information in political ads, it is hard to prove that the candidate knowingly lied in his ad • Also easy for a candidate to hide behind First Amendment • Punishment for a candidate found purposefully lying in his ad is not severe enough to deter candidates from making false ads

Sources • http://www.factcheck.org/specialreports/false_ads_there_oughta_be_a_law.html • www.unimaps.com • http://www.ethics.state.tx.us/ • http://www.sos.state.al.us/election/cfi/glad2006.htm

Models of State Political Advertising Regulations