Legal Hotline: Political Ads – State and Local Elections

Legal Hotline: Political Ads – State and Local Elections

PNA Legal Hotline

Q:  We’re getting a lot of political ads for local and state candidates as the election season gears up.  What are some of the issues we need to consider when reviewing political advertising?

A:  Financing, required disclosures, timing, rates and defamation issues arise in the context of political advertising, and news organizations should carefully review the content of political ads before publication.

NOTE:  this guidance deals with political ads for local and state elections.  Federal elections are governed by federal law, which imposes different requirements on political ads. Please call the PNA Legal Hotline with questions about political advertising for federal elections.

 

What is a political ad?

The Pennsylvania Election Code, section 3258, governs political advertisements and defines the term to include:

“…. communications expressly advocating the election or defeat of a candidate, or ballot questions, through any broadcasting station, newspaper, magazine, outdoor advertising facility, direct mailing, or any other type of general public political advertising…”

 

Financing Advertising – who can pay for political ads?

Pennsylvania law governs who can finance political expenditures like political advertising. Although corporations may not make political contributions in Pennsylvania, the U.S. Supreme Court decision in Citizens United v. FEC, 130 S.Ct. 876 (U.S. 2010), has resulted in additional guidance from the Pennsylvania Department of State regarding “independent expenditures” by corporations and unincorporated associations.  Citizens United was a First Amendment case involving the federal law that prohibited corporations and labor unions from making “independent expenditures,” including paying for political advertising. The United States Supreme Court found the federal law that prohibited corporations from paying for political ads to be unconstitutional. As a result of Citizens United, the Pennsylvania Department of State views some provisions of Pennsylvania’s Election Code to be unenforceable, while others it deems to remain in full force and effect.

In light of the Citizens United decision, the Pennsylvania Department of State takes the position that section 1633 (a) of the Election Code prohibiting “independent expenditures” by domestic corporations and unincorporated associations is unconstitutional and cannot be enforced. An “independent expenditure” is an expenditure “made for the purpose of influencing an election without cooperation or consultation with any candidate or any political committee authorized by that candidate, and which is not made in concert with or at the request or suggestion of any candidate or political committee or agent [of a candidate or political committee].” 25 P.S. § 3241(e). Please note that the prohibitions in section 1633 (a) prohibiting expenditures other than “independent expenditures” by domestic corporations and unincorporated associations remain in full force and effect; this includes the prohibition against corporations making political contributions.

You can read the Department’s guidance on the Citizens United holding here.

News organizations are not required to police the finance provisions of the Pennsylvania Election Code and they should not give legal advice to advertisers. Advertisers with questions about their ability to finance political advertising should be referred to a private attorney and/or the Pennsylvania Department of State Bureau of Campaign Finance for guidance.

 

Disclosures  – are “paid for by” notices required?

Pennsylvania law requires certain disclosures to be included in every political advertisement, and the Citizens United decision has no effect on this aspect of the law. The required disclosures depend upon who is paying for the advertisement and whether the ad is authorized by the political candidate.

All political advertisements must include an indication of who financed the advertisement.

  • If the candidate or candidate’s authorized political committee pays for the advertisement:If the advertisement was authorized by a candidate, her authorized political committee or their agents, there must be a clear and conspicuous statement that the advertisement has been authorized. The advertisement should state “authorized and paid for by…”
  • Unauthorized advertisements: If the ad was not authorized by a candidate, her authorized political committee, or their agents, there must be a clear and conspicuous statement of the name of the person or committee who made or financed the advertisement.
  • If political committees pay for the advertisement: In the case of a political committee financing the advertisement, the disclosure must include the name of any affiliated or connected organization.

Additionally, the Pennsylvania Election Code, 25 P.S. §3258, requires disclaimers to appear “clearly and conspicuously.”  Pennsylvania law does not further define “clearly and conspicuously,” but news organizations should make certain that disclaimers in state and local election ads are plainly visible and in a font size and color that is easy to read.

 

Timing of Advertisements – are last minute political ads legal?

Pennsylvania’s Election Code (section 1638(b)) contains a provision restricting the placement of certain political advertisements in the last days of an election and requiring notice to the opposing party. The provision, as written, makes it a criminal offense to violate the statute. However, in Commonwealth v. Wadzinski, 492 Pa. 35, 422 A.2d 124 (1980), the Pennsylvania Supreme Court declared a former version of this section to be unconstitutional. Based on the Wadzinski decision, the Office of the Secretary of the Commonwealth takes the position that Section 1638 (b) is unenforceable. Political ads can be published up until election day and advertisers are not legally required to provide notice to opposing candidates. However, some news organizations have implemented rules that restrict last minute political ads or impose notice requirements as a matter of policy and such policies are legal.

 

Political Advertising Rates – are discounts OK?

Corporations are prohibited from making political contributions to candidates. “Contribution” is defined to include, among other things: 1) the granting or discounts or rebates not available to the general public; and 2) the granting of discounts or rebates by television and radio stations and newspapers not extended on an equal basis to all candidates for the same office. Under this definition, it is clear that any “discount or rebate” offered by a newspaper to one candidate must be extended on an equal basis to all candidates. Even then, however, there is a question about whether that discount or rebate must also be made available to the general public.

There are no Pennsylvania court rulings on this issue, but news organization may offer political candidates discounts that are the same as those offered to other similarly situated advertising accounts. For example, tiered pricing based upon the size or the duration of the advertisement is legal. Any such discount must, of course, be available to all candidates.

 

Defamation Concerns – are we liable for the content of political ads?

Finally, all advertising should be reviewed for defamation concerns. Although political ads generally refer to public officials/public figures (requiring a plaintiff to prove actual malice before the news organization would be held liable), these actions are expensive to defend and there are never any guarantees. Publishers can be held liable for defamatory content of political (and other) advertising. Careful pre-publication review can minimize risk associated with the content of political advertisements.

As always, this is not intended to be, nor should it be construed as, legal advice. News organizations should contact private counsel or the PNA Legal Hotline at (717) 703-3080 with concerns about the content of a particular political advertisement.