A disclaimer, written or spoken, may be omitted from a political advertisement if its inclusion in full is "impractical."  11 CFR § 110.11(f)(ii).  This FEC "exception" to the disclaimer rules offers as examples of qualifying advertisements, "skywriting, water towers [and] wearing apparel"; but it applies this "exception" more generally to "other means of displaying an advertisement of such a nature that the inclusion of the disclaimer would be impractical."  Id.  How the far this exception goes—the range of ads it might cover—has never been elaborated in detail.

     Now the FEC must decide whether this impracticality exception would allow a political committee to shorten or omit the "stand by your ad" oral disclaimer—"I am Jones, candidate for Congress, and I approved this message"—where the ad length is such that the disclaimer would consume a quarter or a third of the time available for messaging.  Is sparing space for the substantive message, when the ad is short and space at a premium, a basis for holding that inclusion of the full disclaimer is "impractical"?

     The first question the FEC will have to answer is whether it has the authority to grant this relief.  On an analysis of its regulations and previous Advisory Opinions, it appears that it does. 

     First:  the impracticality exception does not apply only to printed disclaimers—contrary to the position apparently taken by the Office of General Counsel in its recent draft analysis.  The exceptions to the disclaimer requirements apply by their terms to all disclaimers, written or spoken:  to "paragraphs (a) through (e) of this section," 11 CFR § 110.11(f), which specifically includes subparagraph (c) where the spoken disclaimer requirements appear for both candidate and non-candidate advertising.

     Second:  the section setting out the exceptions includes three, one of which refers specifically to "printed" disclaimers.  11 CFR § 110.1(f)(1)(i).  The impracticality exception at subparagraph (f)(1)(ii) is one of the others:  and so it is reasonably concluded that it extends more broadly to all disclaimers, and not to just those that are written. 

     Third:  the impracticality exception is fairly read to include more than merely the difficulty of "fitting" in a disclaimer.  The question of convenient "fit" is the business of the first exception:  that one applies to "small items," such as buttons or bumper stickers, "upon which the disclaimer cannot be conveniently printed."  The second "impracticability" exception must mean more or it would be simply duplicative. 

     What should it be construed to mean?  If it is not a question of convenient "fit"—of the physical compatibility of the requirement with the medium of communication—then the issue of compatibility must be of a different, qualitative order.  And, among the different forms that this impracticability could take, one would be that the communication itself would be imperiled—would become impracticable. 

     This line of analysis leads directly to the Commission’s previous treatment of the exceptions—specifically in Advisory Opinion 2004-10, issued to Metro Networks, which proposed to sell federal candidates the opportunity to advertise in live traffic, news, weather, sports and traffic reports.  The candidate could not be present (say, from a traffic helicopter) for these live ad readings:  the disclaimer would have to be read by the on-air talent or the ads would be unavailable to federal candidates.  So the Commission, referring specifically to the impracticability standard, modified the disclaimer standard to suit the mode of communication.  It stated:

[This] approach is practical and as faithful as possible to the "stand by your ad" statute while avoiding unnecessary burdens on political speech that could result from a rigid application of all disclaimer provisions in all instances.

     The focus of this analysis then is the feasibility of the communication itself—whether it remains practicable if the standard disclaimer requirement applies in full. 

     The FEC reinforced the point in the Metro Networks matter by citing to Advisory Opinion 2004-1, where it had previously held that a television ad jointly sponsored by two candidates (President Bush and a Congressional candidate) could carry a disclaimer spoken by one, so long as the speaking candidate made it clear that he was representing the approval of both.  Once again, the accommodation was made to save the communication, to make it practicable in the qualitative sense:  the FEC could have required both candidates to "stand by their ad," in their own words, but the dual disclaimers, spoken by two candidates, would have soaked up political messaging time and, to some ears, caused the ad to sound distractingly odd.

     In the pending Advisory Opinion, AOR 2007-33, the same question is being raised:  whether 10- or 15-second television ads must carry the full spoken disclaimer at considerable expense to messaging content.  The FEC is being asked whether, on the authority provided by the "impracticability exception," the disclaimer can be omitted, with disclosure dependent on the written screen disclaimer, or "truncated."  The agency has the legal authority to respond affirmatively, authorizing omission or a truncated version, and should it do so, its choice would be consistent with others it has made on the same legal basis, as in Advisory Opinions 2004-1 and 2004-10. 

     As noted yesterday, the implications of the FEC’s choice, when made, is not for television advertising alone.  The agency will also illuminate where it stands on the application of the "impracticability" exception to "new media," too—notably text messaging. 

Bob Bauer