Jerry McNerney’s campaign issued a press release this afternoon announcing a legal challenge to a Richard Pombo television commercial that is currently airing in the Sacramento market on broadcast television. The McNerney campaign is alleging that this ad fails to meet FEC regulations governing political disclaimers — you know, those spoken announcements at the end: “I’m Richard Pombo, and I approved this message,” along with the written notice of who paid for the ad.
Well, in this ad, in an apparent attempt at folksiness, Pombo makes the verbal announcement at the beginning of the commercial, sitting with his family and with his daughter parroting his words. All very cute. Except that without the written financial disclosure, it doesn’t comply with very specific FEC regulations. This is the short explanation posted by the FEC:
[T]elevised communications must include an oral disclaimer spoken by the candidate in which the candidate identifies himself or herself and states that he or she has approved the communication. 11 CFR 110.11(c)(3)(ii).The offending Pombo ad has no written statement anywhere in it, let alone specifically located at the end.
This disclaimer can be conveyed in one of two ways:
- A full-screen view of the candidate making the statement (11 CFR 110.11(c)(3)(ii)(A)); or
- A "clearly identifiable photographic or similar image of the candidate" that appears during the candidate's voice-over statement. (11 CFR 110.11(c)(3)(ii)(B)).
- The communication must also include a "clearly readable" written statement that appears at the end of the communication "for a period of at least four seconds" with a "reasonable degree of color contrast" between the background and the disclaimer statement. 11 CFR 110.11(c)(3)(iii).
Now, this is where it gets a little hard to follow. The McNerney campaign is filing a complaint with the Federal Election Commission (FEC) for a violation of campaign laws. Additionally, they will be filing a complaint with the Federal Communications Commission (FCC) which has oversight for television broadcasting. The McNerney campaign will specifically be demanding that the rate charged to the Pombo campaign for its advertising be adjusted because of its malfeasance.
Under existing federal law, candidates are allowed by the FCC to pay special low rates for their advertising called LUCs (Lower Unit Charges). But if a candidate violates the FEC disclaimer rules, it loses its right to buy advertising at the LUC rate. If a television station continues to charge the offending campaign the LUC after the violation occurs and the campaign has lost its right to the lower rate, the difference in price may be considered to be an in-kind contribution to the campaign by the TV station (which would, of course, be illegal).
At the moment, the question of whether this price differential is an in-kind contribution has not been decided. The six-member FEC recently heard a similar case involving the 2006 Casey Senatorial campaign in Pennsylvania, and failed to reach a consensus. They prepared two draft opinions — one saying it does constitute an in-kind contribution and one saying that it doesn’t, but ultimately decided to table their decision. Nevertheless, when the FEC does revisit this issue, any television station which continues to air the candidate’s commercials at the LUC rate runs the risk of having committed serious FEC violations.
So, just in case you’re curious, here’s the offending commercial in its entirety.
If you would like to register a complaint with any of the television stations in Sacramento which have aired this commercial, please feel free to contact them:
KOVR, TV13, CBS (916) 374-1313
KTXL, TV40, FOX (916) 454-4422
KCRA, TV3, NBC (916) 446-3333
KXTV, TV10, ABC (916) 441-2345
KMAX, TV31, CW (916) 374-1313
KQCA, TV58 (916) 447-5858