Published in August 1997
This brochure has been developed to help clarify the following types of special notices:
Each notice may be required (as appropriate) when persons finance political ads and solicitations.1 A section-by-section explanation of these rules is provided within.
Please be advised that this brochure is not intended to provide an exhaustive discussion regarding this area of the election law. The citations refer to the Federal Election Campaign Act (FECA), Federal Election Commission (FEC) regulations (11 CFR) and Advisory Opinions (AOs). If you have any questions after reading the brochure, please contact the FEC:
For purposes of this brochure, a "disclaimer" notice is defined as a statement placed on a political ad or solicitation that identifies the person(s) who paid for the communication and, when appropriate, the person(s) who authorized it.
Basic Rule
A disclaimer notice must be used when public
political advertising is used either:
Application of Rule
In actual practice, a disclaimer notice must be used on any type of public political advertising that includes express
advocacy or solicits funds in connection with a federal election, including:
Definitions
Public Political Advertising
The following types of communications qualify as public political advertising
under Commission regulations:
Express Advocacy
Express advocacy refers to a communication that unambiguously advocates
the election or defeat of a federal candidate. There are two ways a communication
can be defined as express advocacy: by use of certain "magic words"
and by the "reasonable person" test. 100.22
"Magic Words"
The following words convey a message of express advocacy:
"Reasonable Person" Test
In the absence of such "magic words," express advocacy is also
considered to be present in a communication that, when taken as a whole
and with limited reference to external events, can only be interpreted by
a "reasonable person" as advocating the election or defeat of
one or more clearly identified federal candidates. 100.22(b), (c) and (d).4
Independent Expenditures
An independent expenditure is an expenditure for a communication that expressly
advocates the election or defeat of a clearly identified candidate and is
not made with the cooperation or prior consent of, or in consultation with
or at the suggestion of, any candidate, authorized committee or agent of
a candidate. 100.16; 109.1(a); 109.3.
Coordinated Party Expenditures
Coordinated party expenditures are expenditures made by national or state
party committees on behalf of their nominees in connection with the
general election. Such expenditures may be coordinated with the candidate,
but are reported only by the party committee that makes the expenditure.
These expenditures are subject to a special monetary limit. 2 U.S.C. 441a(d);
110.11(a)(2)(i).
Exempt Party Activities
State and local party committees may engage in certain candidate-support
activities without making a contribution or expenditure, provided specific
rules are followed. These "exempt" party activities refer to
the three types of communications listed below:
The actual wording of the disclaimer depends on the type of communication, as explained below. In each example given, it is presumed that the ad was distributed through public political advertising and that it included either express advocacy or a solicitation for contributions in connection with a federal election.
Messages Authorized and Financed by the Candidate
On a communication that is authorized and paid for by a candidate, or his/her
campaign committee, the disclaimer notice must identify who paid for the
message. 110.11(a)(1)(i). Example: "Paid for by the Sheridan
for Congress Committee."
Messages Authorized but Not Financed by the Candidate
On a communication that is authorized by a candidate, or his/her campaign
committee, but is paid for by another person, the disclaimer notice must
identify who paid for and who authorized the message. 110.11(a)(1)(ii).
Example: "Paid for by the XYZ State Party Committee and authorized
by the Sheridan for Congress Committee."5
Messages Not Authorized by the Candidate
On a communication made in support of (or in opposition to) a candidate,
but that is not authorized by the candidate or his/her campaign committee,
the disclaimer notice must identify who paid for the message and state that
it was not authorized by any candidate or candidate's committee. 110.11(a)(1)(iii).
Example: "Paid for by the QRS Committee and not authorized by any candidate
or candidate's committee."
Party or Nonconnected PAC Fundraising
On a solicitation directed to the general public on behalf of a nonconnected
PAC or party committee, the disclaimer notice must identify who paid for
the message. The notice need not indicate who authorized it as long as the
message does not support or oppose any particular candidate. 110.11(a)(1)(iv).
Example: "Paid for by the QRS Committee."
Coordinated Party Expenditures
Pre-nomination Period
On a communication that is made as a coordinated party expenditure before
a nominee is chosen, the disclaimer notice must identify the committee that
paid for the message. 110.11(a)(2). Example: "Paid for by the
XYZ State Party Committee."
Post-nomination Period
Once a candidate has been nominated for the general election, the disclaimer
notice must also state who authorized the ad. Example: "Paid
for by the XYZ State Party Committee and authorized by the Sheridan for
Congress Committee."
The committee that actually makes the expenditure is considered to be the person who paid for the communication even when the committee is acting as the designated agent of a different party committee.
Exempt Party Activities
On exempt activity communications (for example, campaign materials) the
disclaimer notice must identify the committee that paid for the message.
110.11(a)(4). Example: "Paid for by the XYZ State Party Committee."
In order to give the reader sufficient notice about the person(s) paying for or authorizing an ad, the disclaimer notice must be presented in a "clear and conspicuous" manner. This means that the language of the notice is not difficult to read and the notice itself is not easily overlooked. 110.11(a)(5). Specific examples are described below.
Printed Materials
As long as the disclaimer appears somewhere within the communication, it
does not have to appear on the front page or cover of multiple-paged documents.
However, in the case of single-sided documents and billboards, the disclaimer
must appear on the front. 110.11(a)(5)(i).
Packaged Materials
When communications are distributed in a package or as a group, a committee
must evaluate each item separately in order to determine whether a disclaimer
notice is required on that item. A message or ad that would require a disclaimer
notice if it were distributed separately must still display the notice when
it is included in a package of materials. 110.11(a)(5)(ii). Example:
A campaign poster is mailed with a campaign brochure and solicitation letter.
A disclaimer notice must appear on each of these items.
Televised Communications
A disclaimer notice for a televised advertisement must appear in letters
no smaller than four (4) percent of the vertical picture height. The notice
must also air for at least four (4) seconds.6
110.11(a)(5)(iii).
Although the FEC recommends that disclaimer notices be included on all campaign materials, the notices are not required in the following situations.
Message Lacks Express Advocacy or Fundraising Element
Communications without a fundraising or express advocacy message are not
required to include a disclaimer notice.
Public Political Advertising Not Used
A disclaimer notice is not required for communications that are distributed
through means other than television, radio, cable, the Internet, newspapers,
magazines, direct mailings or other forms of public political advertising.
(See definition of Public Political advertising)
Disclaimer Placement is Inconvenient
In situations where a disclaimer notice cannot be conveniently printed,
the notice is not required. This provision affects items such as pens,
bumper stickers, campaign pins, campaign buttons and similar small items.
Further, a disclaimer notice is not required for communications using skywriting,
clothing, watertowers or other forms of advertisement where it would be
impracticable to display the disclaimer notice. 110.11(a)(6)(i) and (ii).
Internal Corporate/Labor Communications
A disclaimer notice is not required for solicitations or communications
made by a separate segregated fund or connected organization to its "restricted
class."7 110.11(a)(7).
Materials Used for Administrative Purposes Only
A disclaimer notice is not required on checks, receipts or similar items
of minimal value that do not include a political message and are used only
for administrative purposes. 110.11(a)(6)(iii).
To satisfy the "best efforts" standard,8 a political committee must include a statement on its solicitations explaining that it is required to use its best efforts to obtain and report certain information from the contributor. This statement is referred to as the "best efforts" notification; two examples are listed below:
The best efforts notification must be clear and conspicuous on both the committee's solicitations and response materials. The notice will not be considered to be "clear and conspicuous" if:
Under the Internal Revenue Service Code (26 U.S.C. §6113), political
committees whose gross annual receipts normally exceed $100,000 are required
to include a special notice on fundraising materials, informing potential
contributors that their contributions are not tax deductible. For more
information, contact the IRS at (800) 829-3676 or (202) 622-7352.
1. This brochure serves as the small entity compliance guide to Commission regulations regarding Political Ads and Solicitations, as required by section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
2. Please note that the FEC recommends placing disclaimer notices on all campaign materials.
3. This term differs in meaning from "direct mail," which is defined separately under FEC regulations. (See 100.7(b)(15)(i), (16) and (17)(i), 100.8(b)(16)(i), (17) and (18)(i) and 110.14(f)(4).)
4. In 1996, the decision by the U.S. Court of Appeals for the First Circuit in Maine Right to Life Committee v. FEC, (98 F.3d 1(1st Cir.1996)) invalidated an FEC regulation containing this "reasonable person" test. The test was based on a 9th Circuit Court of Appeals decision in FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). The split in the circuits on the validity of this regulation remains unresolved. However, a petition for Supreme Court review of the First Circuit decision has been filed on behalf of the Commission.
5. Please note that for communications listing several candidates, the disclaimer notice may state that the message was authorized by the candidates identified in the message or, if only certain candidates have authorized it, by those candidates identified with an asterisk (AO 1994-13).
6. For additional information on broadcast advertising (e.g., radio, TV), please contact the Federal Communications Commission at (202) 418-1440 or (202) 418-7096 (for cable broadcasts).
7. The restricted class includes the executive and administrative personnel of the organization, its stockholders, its members (noncorporate) and their families. (See 11 CFR 114.5(g)(1) and (2); 114.7(a) and (c).)
8. A committee's reports will be considered in compliance with the Act when the treasurer can demonstrate that "best efforts" were used to obtain, maintain and submit the required information. In addition to including the "best efforts" notification on the solicitation, the committee treasurer must: