The FEC Is Back—With an Interesting First Test
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By Bob Bauer
July 28, 2008
This article was posted at Bob Bauer's Blog and is reposted here with permission of the author.
The Federal Election Commission convenes soon after a long time
away and immediately confronts a question of considerable interest
presented by Club for Growth. In an Advisory Opinion Request
(2007-33), on the agenda for the 28th of this month, Club for Growth
asks for relief from the spoken "disclaimer" requirements—the "Stand by
Your Ad" requirements—for television advertising 10 or 15 seconds in
The Club argues that within an ad of that length, the seconds
consumed by the spoken disclaimer eats deeply into the time for the
message, taking up roughly 24% of the 15 second ad and 31% of the 10
second spot. The Club wishes to "truncate" this spoken disclaimer or
omit it altogether, rely for its disclosure on the screen display of
the written version. It appeals to Commission rules that permit the
omission of printed disclaimers on printed items or where their
inclusion would be "impractical," 11 C.F.R. §§ 110.11(f)(1)(i) and(ii),
and on related Commission Advisory Opinions.
The Office of General Counsel has produced a draft
response concluding that this relief is unavailable. In arguing its
position, the Office of General Counsel distinguishes this case from
one involving text-messaging services, decided in an Advisory Opinion
issued to Target Wireless (2002-09). There the FEC approved the
omission of the written disclaimer, on the basis of the severe
character limitations inherent in the technology for transmitting
advertising content sponsored by candidates with a commercial as well
as political message.
The OGC suggests that the limitations at issue in Target
Wireless were more severe than those faced by the Club in its 10- and
15-second advertising. Because those text messages carry commercial as
well as candidate messages, there are both overall and "internal
limitations" on the space available. OGC also relies on the difference
between printed and broadcast advertising. This argument may dispense
with any reliance on the regulation governing printed communications,
but it does not fully address the potential application of the separate
exception that covers cases where the "display" of the disclaimer would
be "impractical." 11 C.F.R. § 110.11(f)(1)(ii).
But OGC also chooses to stand behind an inference about
Congressional intent. Congress, when enacting in McCain-Feingold this
additional, spoken disclaimer content, neither explicitly allowed for
excluding or shortening it, nor suggested that the existing exceptions
How the new Commission addresses this issue—one with
implications for text messaging of all kinds and not only broadcast
advertising—will provide an early reading on this Commission and the
approaches we may see from the new Commissioners.
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