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 length.

     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 applied. 

     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. 

Bob Bauer