Campaign Finance Law: Disclosure and Disclaimer Requirements for Political Campaign Advertising

Campaign Finance Law: Disclosure and Disclaimer Requirements for Political Campaign Advertising

December 30, 2019
Campaign Finance Law: Disclosure and Disclaimer
Requirements for Political Campaign Advertising
Federal campaign finance law sets forth disclosure and
the identity of each person who contributed more than $200
disclaimer requirements for certain types of political
to the organization “for the purpose of furthering an
campaign advertisements. The term disclosure refers to
independent expenditure.” In addition, up to 20 days before
periodic reporting to the Federal Election Commission
an election, an organization must file a report each time it
(FEC) of funds received and spent, and the term disclaimer
spends at least $10,000 on independent expenditures
refers to an attribution statement that appears on a
relating to that election, within 48 hours of incurring the
campaign-related communication. Generally, the Supreme
cost of the expenditure. Less than 20 days before an
Court has upheld the constitutionality of such requirements,
election, an organization must file a report each time it
determining that they serve the governmental interests of
spends at least $1,000 on independent expenditures relating
informing the electorate, deterring corruption or its
to that election, within 24 hours of incurring the cost.
appearance, and facilitating enforcement of the law. This In
Until a recent court ruling, the donor disclosure regulation
Focus surveys current law establishing disclosure and
promulgated under FECA generally applied only to those
disclaimer requirements and discusses pertinent
donors who contributed money specifically “for the purpose
constitutional considerations for legislation, should
of furthering the reported independent expenditure.” As a
Congress decide to enhance or modify such requirements.
result, unless a donation to an organization was made
Disclosure Requirements
specifically for the purpose of funding a particular, reported
independent expenditure, the FEC did not require an
Under the Federal Election Campaign Act (FECA), political
organization to disclose the donor’s identity. This “purpose
committees, which include candidate committees and
requirement” or exception for donor disclosure, however,
political action committees (PACs), must register with the
was successfully challenged in court. In 2018, a federal
FEC and comply with disclosure requirements. Political
district court invalidated the regulation, holding that it
committees are required to file periodic reports that disclose
requires significantly less disclosure than the statute
the total amount of all contributions they receive, and the
mandates by not requiring nonpolitical committee
identity, address, occupation, and employer of any person
organizations to report donors unless there is a “direct link
who contributes more than $200 during a calendar year. In
or specific intent” by the donor to spend the donation for
addition, entities other than political committees—such as
the independent expenditure. Hence, this ruling requires
labor unions and corporations, including incorporated tax-
groups making independent expenditures to disclose more
exempt Section 501(c)(4) organizations—making
“independent expenditures” or “electioneering
of their donors than was required under the invalidated
regulation. Citizens for Responsibility and Ethics in
communications” generally must disclose information to
Washington (CREW) v. FEC, 316 F. Supp. 3d 349, 394
the FEC, including the identity of certain donors over
(D.D.C. 2018), stay denied sub nom, Crossroads Grassroots
specific dollar thresholds. FECA generally defines an
“
Policy Strategies v. CREW, 139 S. Ct. 50 (2018).
independent expenditure” as funds spent on a
communication expressly advocating for the election or
Electioneering Communications
defeat of a candidate and an “electioneering
Once an organization has paid for electioneering
communication” as a broadcast, cable, or satellite
communications aggregating over $10,000 during a
communication during preelection periods that refers to a
calendar year, FECA requires the organization to file
candidate, but does not call for election or defeat. These
disclosure of such payments and then requires subsequent
requirements have been the subject of litigation, as
filings each time the organization makes such payments
discussed below. The FEC is required to make these reports
aggregating more than $10,000 since the last filing. In such
publicly available on the internet within 48 hours of receipt,
filings, the law requires an organization to disclose certain
or within 24 hours if the report is filed electronically, and
information, including the identity and principal place of
available for public inspection in its offices.
business of the organization making the payment for the
Independent Expenditures
electioneering communication, the amount of each payment
over $200, and the names of candidates identified in the
Generally, FECA requires organizations making
communication.
independent expenditures that aggregate more than $250 in
a calendar year to disclose, on a quarterly basis, (1) whether
In certain circumstances, organizations that pay for
an independent expenditure supports or opposes a
electioneering communications may also be required to
candidate, (2) under penalty of perjury, certification as to
disclose their donors. FECA requires the organization to
whether it was made independently of a campaign, and (3)
disclose its donors who contributed at least $1,000, but
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Campaign Finance Law: Disclosure and Disclaimer Requirements for Political Campaign Advertising
provides an exception to the requirement: if an organization
Constitutional Considerations
establishes a separate bank account, consisting of donations
Should Congress consider legislation to change FECA’s
from U.S. citizens and legal resident aliens made directly to
disclaimer and disclosure requirements, the Supreme
the account for electioneering communications, the
Court’s relevant case law informs the constitutional bounds
organization is required to disclose only those donors who
of such legislation. Regarding disclosure requirements, in
contributed at least $1,000 to that account, instead of all
Buckley v. Valeo, 424 U.S. 1, 66-68 (1976), and more
such donors to the organization that are unrelated to
recently, in McConnell v. FEC, 540 U.S. 93, 201-02 (2003),
electioneering communications.
and Citizens United v. FEC, 558 U.S. 310, 366-71 (2010),
the Court has generally affirmed the constitutionality of
Similar to the now-invalidated donor disclosure regulation
disclosure requirements. As the Buckley Court determined,
for independent expenditures, an FEC regulation provides a
disclosure requirements serve the governmental interests of
purpose requirement or exception to the donor disclosure
providing voters with information, deterring corruption and
requirement for electioneering communications. The
avoiding its appearance, and facilitating enforcement of the
regulation permits organizations paying for electioneering
law. Buckley, 424 U.S. at 66-68. Should Congress consider
communications to disclose only the identity of each person
legislation providing for enhanced disclosure requirements,
who made a donation of at least $1,000 specifically “for the
purpose of furthering” electioneering communication
it is notable that in Citizens United, the Supreme Court
s. This
expressly held that the First Amendment does not limit
regulation—specifically, the purpose requirement—has also
Congress to requiring donor disclosure for speech that is the
been the topic of ongoing litigation. Most recently, in 2016,
functional equivalent of express advocacy, that is, messages
a three-judge federal appellate court panel upheld the
that expressly advocate election or defeat of a clearly
regulation, determining, among other things, that the
identified candidate. Citizens United, 558 U.S. at 369.
regulation was consistent with the governing statute and did
Therefore, it appears that a court could uphold legislation
not violate the First Amendment. Van Hollen v. FEC, 811
requiring greater disclosure of funding sources for
F. 3d. 486, 495, 501 (D.C. Cir. 2016), reh’g en banc denied,
communications containing express advocacy, as well as
2016 U.S. App. LEXIS 17528 (D.C. Cir. 2016).
issue advocacy, to the extent that such regulation can be
Disclaimer Requirements
shown to be substantially related to important governmental
interests identified by the Court.
FECA also sets forth disclaimer requirements, providing
that certain political campaign communications contain
Similarly, regarding disclaimer requirements, the Court has
attribution statements. Regardless of the financing source,
upheld the constitutionality of current FECA disclaimer
FECA requires a disclaimer on all public communications
requirements in McConnell v. FEC, 540 U.S. 93, 230-31
that expressly advocate for the election or defeat of a
(2003), and again in Citizens United, 558 U.S. at 367
clearly identified candidate; electioneering
(2010). In upholding the current requirements, the Court
communications; and all public communications that solicit
emphasized how disclaimers provide critical information
contributions. In addition, public political advertising
about advertising sources so that the electorate can more
financed by a political committee must include disclaimers.
effectively judge the arguments they hear. Hence, the Court
For radio and television advertisements by candidate
signaled that should Congress enact additional disclaimer
committees, FECA generally requires that the
requirements, a reviewing court is likely to uphold such
communication state who paid for the ad, along with an
requirements to the extent they are substantially related to
audio statement by the candidate identifying the candidate
the informational interests of the electorate. On the other
and stating that the candidate “has approved” the message.
hand, the Court in Citizens United appeared to rely upon the
In the case of television ads, the candidate must make the
fact that the disclaimer requirements being evaluated in that
statement in an unobscured, full-screen view, or if a voice-
case did not prevent anyone from speaking. Therefore,
over conveys the candidate message, a clearly identifiable
should a disclaimer requirement be so burdensome that it
image of the candidate, along with a written message of
impedes the ability of a candidate or group to speak—for
attribution at the end of the communication, must
example, a requirement that a disclaimer comprise an
accompany the voice-over.
unreasonable period of time in an ad—it could be
invalidated under the First Amendment.
For noncandidate-authorized communications—including
ads financed by outside groups, corporations, and unions—
FECA likewise generally requires that a disclaimer clearly
Related CRS Products
state the name and permanent street address, telephone
CRS Report R45320, Campaign Finance Law: An Analysis of Key
number, or website address of the entity who paid for the
Issues, Recent Developments, and Constitutional Considerations for
communication and state that the communication was not
Legislation, by L. Paige Whitaker
authorized by any candidate or candidate committee. In
CRS In Focus IF10758, Online Political Advertising: Disclaimers
radio and television advertisements, such disclaimers are
and Policy Issues, by R. Sam Garrett
required to include in a clearly spoken manner the
following audio statement: “[the name of the entity paying

for the ad] is responsible for the content of this
advertising.” In addition, in television advertisements, a
representative of the funding entity must convey the
L. Paige Whitaker, Legislative Attorney
statement in an unobscured, full-screen view of the entity,
IF11398
in a voice-over, along with a written message of attribution
at the end of the communication.
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Campaign Finance Law: Disclosure and Disclaimer Requirements for Political Campaign Advertising

Disclaimer
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