The Flyer In Question
Federal law is pretty clear about disclaimers on printed campaign materials—the campaign needs to say who paid for them, and in particular the disclaimer must:
(1) be of sufficient type size to be clearly readable by the recipient of the communication;
(2) be contained in a printed box set apart from the other contents of the communication; and
(3) be printed with a reasonable degree of color contrast between the background and the printed statement.
The Federal Election Commission regulations go on
to add:
A disclaimer ... must be presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identity of the person or political committee that paid for and, where required, that authorized the communication. A disclaimer is not clear and conspicuous if it is difficult to read or hear, or if the placement is easily overlooked.
Now take a look at the above direct mail piece from last summer. Jim Ward was among four major Republican contestants for the party's nomination in Arizona's Fifth Congressional District in 2010 seeking to knock off incumbent Rep. Harry Mitchell (D). Do you see a "clear and conspicuous" notice of whose mailer it was?
If you'll turn your head sideways and squint, you might be able to make out the words "Paid for by Schweikert for Congress" next to the Golden Gate Bridge's tower (the FEC has it slightly larger), Dave Schweikert being one of the other Republican candidates. The disclaimer certainly doesn't seem to meet all three requirements above, and the FEC Office of General Counsel agreed, advising that "the disclaimer's vertical placement, combined with its gold type over a varied background, made it easily overlooked, and not clear and conspicuous." So let the fines commence, right?
Wrong, of course. As you may recall, we have a Federal Election Commission which is governed by six commissioners, three from each party with four votes required to take formal action, and when the Republicans don't want to enforce the law, it might as well not exist. And that's what happened here, with the three Republican Commissioners voting that no violation of law occurred here.
In dissent, the three Democratic Commissioners issued a statement:
We agree with the complainant that this mailer seems plainly designed to conceal the disclaimer and thereby hide the connection between the Committee and the negative attack on a campaign opponent. Candidates have a right to distribute campaign advertisements, including negative attacks on their opponents. The public also has a right to know who is responsible for such advertisements. The public should not be required to engage in a game of "Hide-and-Seek" to discover the disclaimer on campaign materials...
These requirements are not onerous.... In this case, not only does the disclaimer fail to meet the requirements ofthe Act and regulations, but it appears that the Committee intentionally designed the mailer to make the disclaimer difficult to locate and read. There is plenty of blank space on the mailer where the disclaimer could have been put. Furthermore, there is a large amount ofother text on the mailer that is "clear and conspicuous." The only thing that is "conspicuous" about the disclaimer, however, is that it is conspicuously difficult to locate and read.
No fine, and no consequences: Schweikert won the primary with 38% of the vote and went on to defeat Rep. Harry Mitchell in November, 52%-43%.
As the NYT editorial page noted recently,
The message to candidates entering the new era of unlimited big-money campaigning is clear. So long as the Republican members of the F.E.C. get their way, nobody’s minding the store and anything goes.
... With 2012 in sight, more, not less, reform is urgently needed. Five of the six F.E.C. seats come up for replacement next month. The Senate’s preference will be to confirm safe loyalists chosen by party bigwigs. President Obama can make a real difference if he breaks the tradition by selecting truly independent watchdogs as the two parties’ nominees — ones committed to enforcing the law — and fights for their confirmation.
And as Public Citizen's Craig Holman
noted in Monday's Roll Call:
The appointment process for FEC commissioners has been turned on its head, allowing Senate Minority Leader Mitch McConnell (R-Ky.) to appoint a Republican bloc of commissioners dedicated to tying up the law. Under the Constitution, the president nominates commissioners, subject to confirmation by the Senate. In reality, the president accepts for appointment three Republicans recommended by the GOP leader and three Democrats recommended by the Democratic leader. McConnell has made no secret that he has never met a campaign finance law that he liked, not even simple disclosure requirements. While McConnell cannot win in Congress — or in the public debate — his battle to end transparency and limits on money in politics, he has figured out that campaign finance laws can be nullified by a hostile FEC. So, McConnell appointed three Republican commissioners — Don McGahn, Caroline Hunter and Matthew Petersen — who are marching in lock step to neuter the law....
President Barack Obama has the means to fix the FEC. The president could — and should — follow his constitutional mandate to nominate commissioners of his own choosing who are diligent and professional, and then seek confirmation from the Senate. Obama has so far chosen instead to avoid the political fight that would result with McConnell.
But the 2012 elections are right around the corner. The spending spree of secretive corporate slush funds that we saw in 2010 was just a trial run. We cannot allow the FEC to continue shirking its responsibilities in the face of the unprecedented election spending. The credibility of the 2012 elections is at stake.
We will see what the President does—will he even
dangle his feet in the water of nominating his own commissioners committed to enforcing the law?