When a nonconnected committee pays for a communication that is coordinated with a candidate or party committee, the communication is an in-kind contribution that candidate or party committee.
It is important to understand how the Federal Election Campaign Act and FEC regulations define “public communication” because many of the rules regarding political communications depend upon whether the communication in question is a public communication.
A public communication is a communication made by means of:
- Any broadcast, cable or satellite communication;
- Outdoor advertising facility;
- Mass mailing (more than 500 pieces of substantially similar mail within any 30-day period);
- Telephone bank (more than 500 substantially similar telephone calls within any 30-day period);
- An advertisement placed for a fee on another person’s website; or
- Any other form of general public political advertising. The term general public political advertising does not include any Internet communication except for a communication placed for a fee on another person’s website.
Disclaimer notices for coordinated communications
Any public communication made by a political committee—including communications that do not expressly advocate the election or defeat of a clearly identified federal candidate or solicit a contribution—must display a disclaimer.
Types of communications
The disclaimer requirements apply to “public communications” as defined in 11 CFR 100.26, including communications through any broadcast, cable or satellite transmission, newspaper, magazine, outdoor advertising facility, mass mailing or telephone bank to the general public, or any other form of general public political advertising. Internet communications are generally exempt from the definition of “general public political advertising,” with the exception of communications placed for a fee on another person’s website.
However, these disclaimer requirements do apply to political committees’ websites and to email of more than 500 substantially similar communications when sent by a political committee.
Finally, these requirements apply to any communications that solicit contributions and all electioneering communications.
Wording of disclaimer
A disclaimer notice must contain the full name of the committee, along with any abbreviated name used to identify the committee pursuant to 11 CFR 102.14(c). The actual wording of the notice will vary, depending on whether the advertisement is authorized by a candidate or candidate’s committee.
Advertisement authorized by candidate
If a candidate or candidate’s campaign authorizes an advertisement purchased by the committee, the disclaimer notice must identify the committee that paid for the communication along with the campaign or candidate who authorized the advertisement.
Example: Advertisement authorized by candidate
“Paid for by the Civil Republic PAC and authorized by the candidates marked with an asterisk.”
Authorized by multiple candidates
If an advertisement lists several candidates, the disclaimer may state that the advertisement was authorized by the candidates identified in the ad or, if only some candidates have authorized it, by those candidates identified with an asterisk.
Example: Authorized by multiple candidates
“Paid for by the Civil Republic PAC and authorized by the candidates marked with an asterisk.”
All disclaimers must be “clear and conspicuous” regardless of the medium in which the communication is transmitted. A disclaimer is not clear and conspicuous if it is difficult to read or hear, or if its placement is easily overlooked.
Specific requirements for radio and television communications
For radio and television communications authorized by a candidate, the candidate must deliver an audio statement identifying himself or herself, and stating that he or she has approved the communication.
For example, the candidate could state “My name is [name]. I am running for [federal office sought], and I approved this message.”
For a television communication, this disclaimer must be conveyed by either:
- A full-screen view of the candidate making the statement; or
- A “clearly identifiable photographic or similar image of the candidate” that appears during the candidate’s voice-over statement.
Both authorized and unauthorized television communications must also contain a “clearly readable” written statement that appears at the end of the communication. The written statement must occupy at least four percent of the vertical picture height, and it must be shown for a period of at least four seconds, with a reasonable degree of color contrast between the statement and the back- ground.
Safe harbors for television communication disclaimers
A still picture of the candidate shall be considered “clearly identifiable” if it occupies at least 80 percent of the vertical screen height.
Disclaimers that are printed in black text on a white background, as well as disclaimers that have at least the same degree of contrast with the background color as the degree of contrast between the background color and the color of the largest text used in the communication, will be considered “clearly readable.”
Specific requirements for printed communications
Printed materials must contain a printed box that is set apart from the contents in the communication. The disclaimer print in this box must be of sufficient type size to be “clearly readable” by the recipient of the communication, and the print must have a reasonable degree of color contrast between the background and the printed statement.
The regulations contain a safe harbor that establishes a fixed, twelve-point type size as a sufficient size for disclaimer text in newspapers, magazines, flyers, signs and other printed communications that are no larger than the common poster size of 24 inches by 36 inches. Disclaimers for larger communications will be judged on a case-by- case basis.
The regulations additionally provide two safe harbor examples that would comply with the color-contrast requirement:
- The disclaimer is printed in black text on a white background; or
- The degree of contrast between the background color and the disclaimer text color is at least as great as the degree of contrast between the background color and the color of the largest text in the communication.
A disclaimer, while required, need not appear on the front page or cover of a multiple-paged document.
Package of materials
Each communication that would require a disclaimer if distributed separately must still display the disclaimer when included in a package of materials. For example, if a campaign poster is mailed with a solicitation for contributions, a separate disclaimer must appear on the solicitation and on the poster.
Items not requiring disclaimer
A disclaimer is not required:
- When it cannot be conveniently printed (e.g., on pens, bumper stickers, campaign pins, campaign buttons and similar small items);
- When its display is not practicable (e.g., on wearing apparel, on water towers and in skywriting); or
- When the item is of minimal value, does not contain a political message and is used for administrative purposes (e.g., checks and receipts).
”Coordinated” means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.
Commission regulations provide for a three-pronged test to determine whether a communication is coordinated. A communication must satisfy all three prongs of the test to be considered a coordinated communication (and, as a result, count against the contribution limits). Nonconnected committees and organizations are subject to the same coordination test that is applied to communications paid for by other persons.
The three prongs of the test consider:
- The source of payment (payment prong);
- The subject matter of the communication (content prong); and
- The interaction between the person paying for the communication and the candidate or political party committee (conduct prong).
When the payment prong, the content prong and the conduct prong are all satisfied, then the communication is a coordinated communication and results in an in-kind contribution.
The payment prong is satisfied when a coordinated communication is paid for, in whole or in part, by a person other than the candidate, an authorized committee or a political party committee with whom the communication is coordinated.
A communication that meets any one of these five standards meets the content prong:
1) A communication that is an electioneering communication;
2) A public communication that republishes, disseminates or distributes candidate campaign materials, unless the activity meets one of the exceptions at 11 CFR 109.23(b);
3) A public communication that expressly advocates the election or defeat of a clearly identified candidate for federal office;
4) A public communication that:
- Refers to a clearly identified House or Senate candidate and is publicly distributed in the identified candidate’s jurisdiction within 90 days of the candidate’s primary or general election;
- Refers to a clearly identified presidential or vice presidential candidate and is publicly distributed in a jurisdiction during the period starting 120 days before the primary election (or nominating convention or caucus) in that jurisdiction and
ending on the date of the general election;
- Refers to a political party (but not a candidate) in a midterm election cycle, is coordinated with a party committee and is publicly distributed within 90 days of a primary or general election;
- Refers to a political party (but not a candidate) in a presidential election cycle, is coordinated with a party committee and is publicly distributed during the period starting 120 days before the primary in that jurisdiction and ending on the date
of the general election;
- Refers to a political party (but not a candidate), is coordinated with a House or Senate candidate and is publicly distributed in that candidate’s jurisdiction within 90 days of the primary or general election; or
- Refers to a political party (but not a candidate), is coordinated with a presidential candidate and is publicly distributed during the period starting 120 days before the primary until the date of the general election.
For communications that refer to both a party and a clearly identified federal candidate, see 11 CFR 109.21(c)(4)(iv).
5) A public communication that is the functional equivalent of express advocacy. A communication is the functional equivalent of express advocacy if it is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified federal candidate.” This content standard applies without regard to the timing of the communication or the targeted audience.
The purpose of the conduct prong is to determine when interaction between the campaign and the person paying for the communication might constitute coordination. A communication that satisfies any one of the conduct standards described satisfies the conduct prong.
1) Request or suggestion. This conduct standard has two parts, and satisfying either satisfies the standard. The first part is satisfied if the person creating, producing or distributing the communication does so at the request or suggestion of
a candidate, authorized committee, or political party committee or agent of any of these.
A communication satisfies the second part of the “request or suggestion” conduct standard if the person paying for the communication suggests the creation, production or distribution of the communication to the candidate, authorized committee, political
party committee or agent of any of these, and the candidate, authorized committee or political party committee assents to the suggestion.
2) Material involvement. This conduct standard is satisfied if a candidate, candidate committee, political party committee or an agent of any of these was “materially involved in decisions regarding” any of the following aspects of a public communication paid for by someone else:
- Content of the communication;
- Intended audience;
- Means or mode of the communication;
- Specific media outlet used;
- Timing or frequency of the communication; or
- Size or prominence of a printed communication or duration of a communication by means of broadcast, cable or satellite.
3) Substantial discussion. A communication meets this conduct standard if it is created, produced or distributed after one or more substantial discussions between the person paying for the communication, or the person’s agents, and the candidate clearly identified in the communication or that candidate’s committee, that candidate’s opponent or opponent’s committee, a political party committee or an agent of these. A discussion would be “substantial” if information about the plans, projects, activities or needs of the candidate or political party committee that is material to the creation, production or distribution of the communication is conveyed to the person paying for the communication.
4) Employment of common vendor. The conduct standard provides that the use of a common vendor in the creation, production or distribution of a communication satisfies the conduct standard if:
- The person paying for the communication contracts with, or employs, a commercial vendor to create, produce or distribute the communication; and
- The commercial vendor, including any officer, owner or employee of the vendor, has a previous or current relationship with the candidate or political party committee that puts the commercial vendor in a position to acquire information about the campaign
plans, projects, activities or needs of the candidate or political party committee. This previous relationship is defined in terms of nine specific services related to campaigning and campaign communications. Note that these services would have
to have been rendered within 120 days before the purchase or public distribution of the communication; and
- The commercial vendor uses or conveys information about the campaign plans, projects, activities or needs of the candidate or political party committee, or information previously used by the commercial vendor committee, to the person paying for the
communication, and that information is material to the creation, production or distribution of the communication. See “Safe harbor for publicly available information" and “Safe harbor for use of a firewall.”
5) Former employee/independent contractor. This conduct standard applies to communications paid for by a person or the employer of a person, who has previously been an employee or an independent contractor of a candidate, candidate’s campaign committee or a political party committee during the 120 days before the purchase or public distribution of the communication. This standard requires that the former employee or contractor use or convey information about the plans, projects, activities or needs of the candidate, candidate’s opponent, or political party committee, or information used by the former employee or contractor in serving the candidate, candidate’s opponent, or political party committee, to the person paying for the communication, and the information is material to the creation, production or distribution of the communication. See “Safe harbor for publicly available information" and “Safe harbor for use of a firewall.”
Dissemination, distribution or republication of campaign material
A communication that republishes, disseminates or distributes campaign material only satisfies the first three conduct standards on the basis of the candidate’s conduct — or that of his or her committee or agents — that occurs after the original preparation of the campaign materials that are disseminated, distributed or republished. The financing of the distribution or republication of campaign materials, while considered an in-kind contribution by the person making the expenditure, is not considered an expenditure made or a contribution received by the candidate’s authorized committee unless the dissemination, distribution or republication of campaign materials is coordinated. Additionally, republications of campaign materials coordinated with party committees are in-kind contributions to such party committees, and are reportable as such.
Agreement or formal collaboration
Neither agreement (defined as a mutual understanding on any part of the material aspect of the communication or its dissemination) nor formal collaboration (defined as planned or systematically organized work) is necessary for a communication to be a coordinated communication.
Safe harbor provisions to the conduct prong
Safe harbor for responses to inquiries about legislative or policy issues
A candidate’s or political party committee’s response to an inquiry about that candidate’s or party’s positions on legislative or policy issues, which does not include discussion of campaign plans, projects, activities or needs, will not satisfy any of the conduct standards.
Safe harbor for publicly available information
The standard for substantial discussion, material involvement, use of a common vendor and involvement of a former employee are not satisfied if the information used in creating or distributing the communication was obtained from a publicly available source. Publicly available sources include, but are not limited to:
- Newspaper or magazine articles;
- Candidate speeches or interviews;
- Transcripts from television shows;
- Press releases;
- A candidate or political party’s website; and
- Any publicly available website.
Safe harbor for use of a firewall
None of the conduct standards are satisfied if the vendor, political committee, former employee or contractor implements a firewall. The firewall must be designed and implemented to prohibit the flow of information between employees or consultants providing service to the person paying for the communication and those employees or consultants providing services to a political party committee or to the candidate who is clearly identified in the communication or to the campaign of the candidate opposing the candidate clearly identified in the communication. The firewall must be described in a written policy statement that is distributed to all employees, consultants and clients affected by the policy.