Disclaimers on Political Advertising

The disclaimer rule answers one question for the reader or viewer: who paid for this. It does so through prescribed wording rather than through a general duty of transparency, and the prescription is exact enough that a communication can satisfy the spirit of the rule while failing its terms. The obligation attaches by category of communication and by category of payer.

Which Communications Carry the Obligation

Three groups of communication are covered. The first is any public communication made by a political committee, whatever its content. The second is any public communication by any person that expressly advocates the election or defeat of a clearly identified candidate. The third is any public communication by any person that solicits a contribution, which sweeps in fundraising material regardless of whether a candidate is mentioned at all.

Public communication is itself defined, covering broadcast, cable and satellite transmission, newspapers, magazines, outdoor advertising facilities, mass mailings, telephone banks to the general public and other forms of general public political advertising. Internet communications placed for a fee on another person's platform fall inside the definition; unpaid content posted by a committee on its own channels is treated separately, though solicitations remain covered wherever they appear.

Certain communications carry the obligation because of what they are rather than who made them. An electioneering communication, defined by reference to broadcast, cable or satellite distribution, a clearly identified candidate and proximity to an election, is covered by its own provision. So are solicitations that appear inside otherwise unregulated material, which is why a newsletter that is not itself a political communication acquires the obligation the moment it asks for money for a federal committee.

The Three Prescribed Wordings

Which words are required depends on who authorized the communication and who paid. Where a candidate, an authorized committee or an agent both authorized and paid, the notice states that the communication was paid for by that committee. Where a candidate authorized the communication but another person paid for it, the notice names the payer and states that the communication was authorized by the candidate or the committee.

Where no candidate authorized it, the notice must do three things: name the person who paid, state that the communication was not authorized by any candidate or candidate's committee, and give the payer's permanent street address, telephone number or website address. The third element is the one most often dropped, and its absence is a defect even where the payer is otherwise plainly identified in the body of the communication.

The payer named must be the person who actually paid. Where a vendor places media on a client's behalf, the client is the payer and the vendor is not, and naming the agency rather than the principal misstates the required fact. Where two or more persons share the cost, the notice identifies each of them. A trade name or abbreviation is acceptable only where it identifies the payer as clearly as the full name would.

Format, Legibility and Audibility

The rule sets a general standard and then specific floors. The general standard is that the disclaimer be clear and conspicuous, and the rule states expressly that a notice is not clear and conspicuous where it is difficult to read or hear, or where its placement is easily overlooked. That standard applies to every covered communication regardless of medium and is assessed on the delivered item rather than on the design file.

For printed material the floors are concrete: the notice appears in a printed box set apart from the other contents, in a print color that contrasts with the background, in a type size large enough to be clearly readable, with a stated minimum height for certain formats. Radio requires a clearly spoken statement. Television requires the statement to be conveyed both audibly and visually, with the visual element displayed for a minimum duration at a minimum share of the screen height.

Additional requirements apply to television and radio communications authorized by a candidate, which must include a statement identifying the candidate and approving the communication, delivered by the candidate in the candidate's own voice and, on television, accompanied by an image of the candidate. The requirement is separate from the payer notice and is satisfied only by the candidate personally, so a surrogate reading the approval line leaves the communication defective however clearly the payer is identified elsewhere.

Items and Placements That Are Exempt

Two exceptions relieve the obligation. The first covers items too small to carry a legible notice: pins, buttons, pens, bumper stickers of limited size and comparable objects. The second covers communications where placing a disclaimer would be impracticable, such as skywriting, water towers and wearing apparel. Both are read narrowly, and the fact that a notice would be inconvenient or aesthetically unwelcome does not bring an item inside either one.

A third category is not an exception but a limitation: certain checks, receipts and similar items of purely administrative character are outside the covered communications in the first place. The distinction matters because the exceptions relieve only the notice. The underlying payment remains an expenditure, is aggregated toward whatever thresholds apply, and is reported by the payer on the schedule described in the reporting calendar.

How Defects Surface and What They Cost

Disclaimer defects are unusually easy to detect, because the communication itself is the evidence and it has already been distributed publicly. A complaint attaching a photograph of a mailer, or a recording of a broadcast, presents the entire factual case for the alleged violation. The process that follows is the ordinary one described in the enforcement sequence, and it turns on the finished item rather than on intent.

The defect frequently travels with a second one. An unauthorized communication requiring the full notice is usually an independent expenditure, which carries the reporting duties in the independent expenditure rules, or a coordinated communication that should have been reported as an in-kind contribution under the coordination framework. A payer that misidentified the category on the face of the advertisement has usually misidentified it on the report as well.

State law adds a parallel set of requirements for state and local races, with its own prescribed language, its own type-size rules and, in some jurisdictions, additional disclosure of major funders on the face of the communication. The federal notice does not satisfy a state requirement, and a communication distributed across both levels may need to carry both.