Those who followed the first Federal Election Commission meeting in a long time will know that it issued two Advisory Opinions, adopting the staff recommendations in both instances.  One of the Opinions, issued to Club for Growth (2007-33), rejected a modification of the oral disclaimer, the stand by your ad (SBYA), for 10- and 15-second advertisements.  The Commission concluded that the statute did not afford such flexibility for non-candidate committees, such as Club for Growth.

     One concern was the implication of this decision for text messaging.  In the Metro Networks Opinion (2004-10), the Commission authorized a modification of the disclaimer where to have required it in full, when the characters available were limited, would render “impracticable” the inclusion of even a short political message.  At the meeting, Chairman McGahn clarified for the record that rejection of the Club for Growth position should not be read to put in question the holding in Metro Networks, and, specifically, the flexibility provided for text messaging. 

     This clarification also appears in the Commission press release on the issuance of the Opinion.  This is a nice touch:  for the Commission to explain, where it might not otherwise be obvious, what an Opinion was intended—or not intended—to accomplish.  So what the Commission has done here settles the law only for non-connected committees, and only for the spoken SBYA disclaimer. 

     The fact remains that the law now renders “impracticable” the broadcast of 10- or 15-second advertisements by non-candidate committees.  The speech required by the government takes up 25-30% of the time available.  Few may care, and indeed there are larger, more pressing issues in this field of law, particularly in an advertising market where the market for ads of this length in federal elections may be relatively limited.

     But to the extent that an advertiser may wish to run an ad of this length, or cannot afford one that is longer, the statutorily compelled sponsorship statement will be a factor in the decision whether to buy the time.  It may not be legally “impracticable” to include the full oral disclaimer:  so the Commission has held.  The disclaimer will have to be included.  Now the decision facing the prospective advertiser is:  run or not run the ad.

Bob Bauer