By Nathan L. Gonzales, CQ Roll Call
WASHINGTON — A disclaimer may seem like a rote few seconds in a campaign ad, but failing to follow the specific guidelines could have costly consequences for a candidate.
On Sept. 16, former Rep. Bobby Schilling (R-IL) aired a 30-second ad titled “How Could You?” that accused Democratic Rep. Cheri Bustos of cutting benefits for military veterans. Democrats promptly sent a letter to television stations in Illinois’ 17th District, taking issue with the disclaimer on Schilling’s ad and arguing the Republican forfeited his right to the lowest unit charge for the remainder of the race.
According to the FEC, disclaimers can be conveyed one of two ways:
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.
The communication must also include a “clearly readable” written statement that appears at the end of the communication “for a period of at least four seconds” with a “reasonable degree of color contrast” between the background and the disclaimer statement.
The Schilling ad appears to meet those requirements.
But there is a separate set of disclaimer guidelines in the Communications Act of 1934, amended by the Bipartisan Campaign Reform Act of 2002 (the so-called McCain-Feingold bill), and regulated by the FCC.
Here are the relevant FCC guidelines, if a candidate’s ad mentions his or her opponent:
A candidate meets the requirements of this subparagraph if, in the case of a television broadcast, at the end of such broadcast there appears simultaneously, for a period no less than 4 seconds —
(i) a clearly identifiable photographic or similar image of the candidate; and
(ii) a clearly readable printed statement, identifying the candidate and stating that the candidate has approved the broadcast and that the candidate’s authorized committee paid for the broadcast.
The provision was apparently put in place to hold candidates more accountable for airing negative ads and to prevent candidates from putting the disclaimer first, airing a nasty attack, and then preventing viewers from knowing the source.
The initial Schilling ad appears to meet the second part of the guidelines. But it was missing the first part, because the written disclaimer at the end appears simultaneously with video and audio of military veterans, instead of Schilling.
“The bottom line is that, at the time of the complaint, the ad was going off the air anyway,” said Rex Elsass, whose firm, The Strategy Group for Media, produced the spot. In the middle of last week, the Schilling campaign “switched traffic,” the campaign term for changing ads, and the disclaimer on the new ad, “Spin,” was slightly different. The written disclaimer at the end is accompanied by a “postage stamp” photo of the candidate.
So what’s the big deal? This particular disclaimer issue has the potential for serious financial consequences for Schilling because it occurred within 60-day window before the election.
“(B)obby Schilling has forfeited his entitlement to the lowest unit charge for the duration of the campaign,” attorney Mike Halpin wrote in a Sept. 17 letter to station managers on behalf of the Bustos campaign. “From now through the day of the general election, your station must charge Bobby Schilling and Bobby Schilling for Congress the same rate for broadcast time that it charges non-political advertisers for comparable use.”
The challenger was already facing a significant cash disadvantage in the race and can ill afford to spend more than necessary for his ads. Through the end of June, Schilling raised $666,000 and had $500,000 in cash on hand. Bustos raised nearly $2 million and had $1.5 million in the bank at the same time. The third quarter ended on Sept. 30, but reports aren’t due until Oct. 15. The rate for non-candidate groups tends to be at least twice the rate for candidates during the heat of the campaign season.
“It’s not a fixable thing,” according to an attorney who specializes in FCC law. “Once a candidate does it, it’s a fatal blow. You’ve screwed yourself for the rest of the campaign.” The challenge for Democrats is that there isn’t a clear enforcement mechanism. And even though a candidate is not “entitled to” the lowest unit charge doesn’t mean the station is required to stop offering it to them.
Station managers take complaint letters seriously, according to two sources familiar with the process. Usually, the first step is to approach the original campaign for a response. Then stations and their counsel decide whether the ad is compliant or not.
But what happens if the station declines to force candidates to pay more after an alleged violation? In the past, a party has filed a complaint with the FEC charging that the station is providing an illegal corporate contribution to the candidate through savings on ad buys. Thus far, that tactic hasn’t gotten very far.
For example, in 2004, Missouri Democrat Nancy Farmer’s campaign alleged that GOP Sen. Kit Bond’s campaign was no longer eligible for the lowest unit charge because of a faulty disclaimer and filed a formal complaint against Missouri Broadcasters Association. The FEC concluded that a broadcaster’s decision to offer Bond the lowest unit charge under these circumstances did not result in an in-kind contribution and found no violation of any disclaimer requirement over which the FEC had jurisdiction. The commission has deadlocked in other, similar instances, according to multiple attorneys.
But just the threat of an FEC complaint could be effective. Some stations might choose to relent rather than litigate an official FEC complaint, which could cost at least $50,000 in legal fees.
But according to Elsass, the potential penalty is irrelevant. “We are buying at a higher rate than the lowest unit rate anyway,” the consultant explained. For him, the goal is to find the “effective selling rate,” or the lowest cost for an ad that won’t get preempted by higher paying advertisers during the most desirable time slots.
It remains to be seen if and how the Bustos campaign will push the issue. But with just five weeks to go before Election Day, it seems unlikely the slow-moving FEC would come out with an opinion that would have an impact this year. It looks like the Schilling campaign may have gotten away with that looks like a sloppy mistake.