Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues
Finance Policy After Citizens United v. Federal Election Commission: Issues and Options for Congress, by R. Sam Garrett. 18
Increased Disclaimer Requirements19
Some legislation and proposals that have been discussed in response to the Supreme Court’s ruling in Citizens United v. FEC would increase disclaimer requirements for political communications paid for by corporations. The term “disclaimer” typically refers to sponsor identification that is included in the content of the advertisement. For example, such proposals may require advertisements to include a statement by the president or chief executive officer of the corporation, identifying such individual by name and position, and indicating that the corporation that he or she heads paid for the ad and approved its contents. In addition, such proposals may require inclusion of an image of the individual making the statement.
Currently, the Federal Election Campaign Act (FECA) requires that any public political advertising financed by a political committee include various disclaimers. Of particular relevance, it also requires that corporations and labor unions include disclaimers in any communication expressly advocating the election or defeat of a clearly identified candidate, any solicitation of contributions, or any other public political advertising, including electioneering communications, that are financed by corporations and labor unions.20 FECA defines “electioneering communication” as any broadcast, cable, or satellite communication that refers to a clearly identified federal candidate made within 60 days of a general election or 30 days of a primary.21
For communications financed by corporations and labor unions, FECA requires the disclaimer to clearly state the name and permanent street address, telephone number, or website address of the person who paid for the communication and state that the communication was not authorized by any candidate or candidate committee. In radio and television advertisements, corporations and labor unions are required to include in a clearly spoken manner, the following audio statement: “________ is responsible for the content of this advertising,” with the blank to be filled in with the name of the entity paying for the ad. In addition, in television advertisements, the statement is required to be conveyed by an unobscured, full-screen view of a representative of the entity paying for the ad, in a voice-over, and shall also appear in a clearly readable manner with a reasonable degree of color contrast for a period of at least four seconds.22 This requirement is often referred to as “stand by your ad.” FECA does not require disclosure for advertising that does not expressly advocate election or defeat of a clearly identified candidate, and that does not meet the criteria of an “electioneering communication.”
In McConnell v. FEC,23 by a vote of 8 to 1, the Supreme Court upheld the facial validity of the disclaimer requirement in Section 311 of BCRA. Specifically, the Court found that it “bears a
F o r a d i s c u s s i o n o f c a m p a i g n f i n a n c e p o l i c y i s s u e s i n t h e 1 1 1 1 t h C o n g r e s s , s e e C R S R e p o r t R 4 0 0 9 1 , C a m p a i g n F i n a n c e : P o t e n t i a l L e g i s l a t i v e a n d P o l i c y I s s u e s f o r t h e 1 1 1 t h C o n g r e s s , b y R . S a m G a r r e t t . 18
This portion of the report discussing increased disclaimer requirements was written by L. Paige Whitaker. 2 U.S.C. § 441d(a). See 2 U.S.C. § 431(11), which defines “person” to include corporations and labor unions. 2 U.S.C. § 434(f)(3). 2 U.S.C. § 441d(d)(2). 540 U.S. 93 (2003).
Congressional Research Service