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Disclosures on Campaign Communications: A Primer for Newspapers
05.25.2010
Published by the Maine Press Association
With election season in full swing, several newspapers have inquired about their obligation to include disclosures in political advertisements in accordance with Maine election law. This is a primer on political disclosure requirements for newspapers and newspaper websites.
1. Does all political advertising require a disclosure?
No. The only advertisements that require disclosure are those that either (A) expressly advocate the election or defeat of a clearly identified candidate; or (B) name or depict a clearly identified candidate and "are made for the purpose of influencing the candidate's nomination for election or election" within 21 days before a primary or 35 days before a general election.
A disclosure is not required for ballot questions, referendum questions, or issue advertising that does not cross the line of advocacy for a particular candidate. A newspaper may set its own policy concerning whether to accept issue advertising or not, and whether to require sourcing as a condition of receipt of such advertising.
2. What disclosures are required when an advertisement is authorized?
If an advertisement is authorized by a candidate or candidate's authorized political committee, then the advertisement must clearly and conspicuously state that it has been authorized and must state the name of the person who made or financed the expenditure or communication. For example, "Paid for and authorized by John Smith" or "Authorized by the Candidate and Paid for by the Committee to Elect John Smith."
An advertisement financed by a candidate or the candidate's committee is not required to include the address of the candidate or committee that financed the communication. However, an authorized expenditure by a person not associated with the campaign must include the address of the person who made or financed the expenditure. For example, "Authorized by the Candidate John Smith and Paid for by Sam White, 5 Oak Street, Pinetree City."
3. What disclosure are required when an advertisement is NOT authorized?
If an advertisement is not authorized by a candidate, a candidate's authorized political committee, or their agents, the communication must clearly and conspicuously state: (A) that the communication is not authorized; and (B) the name and address of the person who made or financed the expenditure for the advertisement. The bottom of the advertisement must contain in print no smaller in size than 10-point bold print, Times New Roman font, the words "NOT PAID FOR OR AUTHORIZED BY ANY CANDIDATE." The law does not establish specific print size, location, or the precise language that must be used for other required disclosures, but such disclosures must be clear and conspicuous.
4. How do the disclosure requirements change close to elections?
Within 21 days before a primary or 35 days before a general election, an address must be included even for authorized advertisements paid for the candidate or by the candidate's committee. Any advertisement that names or depicts a clearly identified candidate and that is "made for the purpose of influencing the candidate's nomination for election" must state the name and address of the person and whether or not the advertisement was authorized.
5. What are the risks of running an advertisement without the required disclosure?
The election law prohibits a newspaper or website from publishing a communication without the required disclosure. A violation is subject to a civil fine of up to $100 if the violation is not corrected within 10 days and the communication is made more than 20 days before an election. A violation made within 20 days of an election is subject to a fine of up to $200. A violation made with intent to misrepresent the identity of the person making or financing the advertisement or intent to misrepresent whether the communication was or was not authorized by the candidate is subject to a fine of up to $5,000.
The Commissions has to our knowledge never sought either to prevent the publication of a newspaper (in whole or part) for a violation of the election law or to fine any news media. According to the Commission, the primary obligation to comply falls on the candidate. Any penalty or attempted prior restraint on a newspaper may violate the First Amendment.
6. Where can I turn for more information?
The Maine Press Association's legal counsel may be contacted with questions: Sig Schutz (207-791-3247) or Dan Walker (207-791-3281).
The Maine Commission on Governmental Ethics and Election Practices will provide advise regarding whether a communication requires a disclosure and will respond to other questions by newspapers. The contact at the Commission is Paul Lavin, Assistant Director (207-287-4179).
* Sigmund D. Schutz is a partner with PretiFlaherty, LLP in Portland, Maine. PretiFlaherty is counsel to the Maine Press Association.
An analysis of First Amendment issues is beyond the scope of this primer. Also beyond the scope are rules relating to broadcasters, which are regulated by the Federal Communications Commission.
Sources: 21-A M.R.S.A. § 1014; Guidebook for 2010 Gubernatorial Candidates Running for Office in Maine, Commission on Governmental Ethics and Election Practices, pp. 59-62 (7/20/09).