Do Misleading Campaign Websites Violate Federal Law? (American Constitution Society Blog)
Controversy is swirling around a number of websites that have been set up by the National Republican Congressional Committee (NRCC) in recent months. The websites have URLs and headlines that imply support for named Democratic candidates for Congress. The websites also have prominent “donate” buttons. But in less prominent text, the websites indicate opposition to the named candidates and any contributions made via the websites actually go to the NRCC.
The Los Angeles Times has counted 18 such websites so far, with URLs such asAnnKirkpatrick.com, SinemaForCongress.com and RonBarber2014.com. Ann Kirkpatrick, Kyrsten Sinema and Ron Barber are all Democratic Members of Congress running for reelection this year. The headlines at the top of these pages read “KIRKPATRICK FOR CONGRESS,” “Kyrsten Sinema for CONGRESS” and “Ron Barber CONGRESS,” respectively. Time has described these websites as “clearly designed to trick the viewer—at least at first—into thinking they’re on a legitimate campaign website.” But these websites aren’t merely part of the underhanded games that typically accompany political campaigns. They also violate federal law.
For decades, the Federal Election Commission (FEC), the administrative agency charged with enforcing federal campaign finance laws, has been concerned with efforts by noncandidate political committees (such as party committees like the NRCC and its counterpart, the Democratic Congressional Campaign Committee) to trick people. Since the late 1970s, federal law, 2 U.S.C. § 432(e)(4), has prohibited any noncandidate political committee from “includ[ing] the name of any candidate in its name.” Initially, the FEC interpreted this statutory prohibition as applying only to the official name a committee registered with the FEC. For example, those who set up independent committees to support Ronald Reagan’s 1980 presidential campaign were prohibited from using Reagan’s name in their official committee name. Instead, they registered committees with the FEC using names such as “Americans for Change” and “Americans for an Effective Presidency.”
But these groups did use Reagan’s name in the titles, letterheads and return addresses of their direct mail solicitations. The Americans for Change committee, for example, created “Reagan for President in ’80,” sending out direct mail solicitations under this letterhead with postage-paid reply envelopes addressed to that name.
Initially, the FEC determined that such actions did not violate the statutory prohibition because it determined that the statute applied only to the committees’ official names, and not to their fundraising projects. When the FEC’s ruling was challenged, the U.S. Court of Appeals for the D.C. Circuit held in Common Cause v. FEC that the FEC’s interpretation was permissible, but noted that a broader reading of the statute would also be permissible—i.e., one that included not “only the officially registered ‘name’ of the political committee but rather any title under which such a committee holds itself out to the public for solicitation or propagandizing purposes.” Then-Circuit Judge Ruth Bader Ginsburg went even further, stating that limiting the statutory prohibition to the official name of the committee “defies common sense and fosters the very confusion Congress sought to prevent.”
By 1992, the FEC came to share Justice Ginsburg’s view and amended its regulations at 11 C.F.R. § 102.14(a) to extend the candidate name prohibition to include not only the official name of the committee, but also “any name under which a committee conducts activities, such as solicitations or other communications, including a special project name or other designation.” The FECexplained that it had “become more concerned about the potential for confusion or abuse when an unauthorized committee uses a candidate’s name in the title of a special fundraising project. A person who receives such a communication may not understand that it is made on behalf the committee rather than the candidate whose name appears in the project’s title.” The Commission further explained that “the potential for confusion is equally great in all types of committee communications,” not merely the official titles.
Of course, notwithstanding the ban on the use of candidate names in the titles of committee communications, committees remain free to “discuss any number of candidates, by name, in the body of the communication.” Additionally, following a 1994 amendment to the FEC’s regulation, noncandidate committees may also use the name of a candidate “in the title of a special project name or other communication”—but only “if the title clearly and unambiguously shows opposition to the named candidate.” Thus, the law is clear: a noncandidate committee may notuse the name of a candidate in the committee’s title or in the title of a special project, such as a website, unless the committee opposes that candidate and the title of the website or other communication makes that opposition very clear.
The FEC made clear in a 1995 advisory opinion that the operation of a website constitutes a “special project” for purposes of the candidate name prohibition. Thus, because the NRCC is a noncandidate committee; the new websites are special projects under the law; and the URLs and titles include the names of candidates; the websites clearly fall within the federal law candidate name restrictions, and may only use the name of a candidate in their titles “if the title clearly and unambiguously shows opposition to the named candidate.” But far from doing so, the URLs and titles of these websites contain textbook language indicating supportfor these candidates—e.g., SinemaForCongress.com. Indeed, the phrases of support used in the website URLs and titles are nearly the same as the examples of express advocacy or support the Supreme Court used in Buckley v. Valeo, such as “Smith for Congress.”
Finally, it is not sufficient, as some have asserted, that a reader who scrutinizes these websites more closely will ultimately recognize that they oppose, rather than support, the candidate named in the title. The FEC regulations make it clear that “the title” must unambiguously indicate such opposition. The regulations thus put the burden on political committees to refrain from creating misleading websites – not on the voting public to sort through intentionally confusing language.
Consequently, these misleading websites violate federal law. The NRCC should take down these websites and the FEC should initiate an enforcement action against the NRCC’s flagrant violations of federal campaign finance law.
Paul S. Ryan is Senior Counsel at The Campaign Legal Center. This opinion piece originally appeared on the American Constitution Society Blog on February 10, 2014. To read the piece on the American Constitution Society Blog, click here.