Legal Hotline: Political ads for federal elections

  • Sep 15, 2016

Melissa Melewsky, Media Law Counsel

Q:    An advertiser wants to place a political ad for the presidential election but does not want to include any disclaimer other than “not authorized by the candidate.”  Can we do that?

 A: No.  Federal election law requires ads to include a disclaimer that identifies the party placing the ad, and additional content of the disclaimer will differ depending on whether or not the ad is authorized by the candidate or candidate’s committee.

NOTE: Please be aware that the rules are different for state and federal elections.  These rules govern federal election campaigns

Under federal law, candidates and their committees must include a clear and conspicuous disclaimer on all "public communications" (e.g., TV and radio ads, newspaper, magazine or outdoor advertising). Public communications financed by individuals or other organizations must include a disclaimer if the communication expressly advocates a candidate's election or defeat, or solicits funds. The necessary disclaimer varies, depending upon who places the ad. The general rules are as follows:

Messages authorized and financed by a candidate:
On public communications that are authorized and paid for by a candidate or his/her campaign committee, or an agent of either of the foregoing, the disclaimer notice must identify who paid for the message. Example “Paid for by the Smith for Congress Committee.”

Messages authorized but not financed by a candidate:
On public communications that are authorized by a candidate or his/her campaign committee, but paid for by another person, or an agent of either of the foregoing, the disclaimer notice must identify who paid for the ad and state that the candidate authorized committee, or agent authorized the message. Example: “Paid for by ABC State Party Committee and authorized by the Smith for Congress Committee.”

Messages not authorized by a candidate:
On public communications that are not authorized by a candidate or his/her campaign committee, the disclaimer notice must identify who paid for the message, state that it was not authorized by any candidate or candidate’s committee, and list the permanent street address, telephone number or internet address of the person who paid for the communication. Example: “Paid for by the ABC Committee (www.ABCcommittee.org) and not authorized by any candidate or candidate’s committee.”

Placement, Size Requirements for Disclaimers:

The disclaimer notice must be “clear and conspicuous” on the ad. It must appear within a printed box set apart from the other contents in the ad. The print must be of a sufficient type-size to be clearly readable by the reader, and the print must have a reasonable degree of color contrast between the background and the printed statement.

The Federal Election Commission (FEC) regulations contain a “safe harbor” that establishes a fixed, 12-point type size as a sufficient type size for disclaimer text in newspapers and other printed communications that are no larger than common poster size (24” x 36”). Disclaimers for larger communications are judged on a case-by-case basis.

For more information, please see http://www.fec.gov/pages/brochures/notices.shtml

As always, this is not intended to be, and should not be construed as, legal advice.  Please consult your newspaper’s attorney or the PNA Legal Hotline at (717) 703-3080 with questions.

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