Last Week at the FEC: Potential Compromise For Disclaimers in Mobile Advertisements

by Holland & Knight LLP

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Last week the Federal Election Commission met in executive session on Tuesday, February 4 but canceled its open meeting scheduled for February 6. The Commission was able to release a supplement to the underlying opinion request in its ongoing consideration of AO 2013-18, Revolution Messaging. It also publicly released the results of MUR 6758, a matter resulted in a $8,500 civil penalty against Ron Zerban for Congress.

A Compromise Proposal From Revolution Messaging

The Commission continues to consider two very different draft advisory opinions regarding mobile advertising, which this blog has followed extensively, including specific discussion on December 2 and 9, 2013. As of now, the Commission has until February 28 to respond to Revolution Messaging's request for an advisory opinion regarding whether political communications made via mobile phone banner advertisements must include a disclaimer or whether they could refrain from doing so based on the Commission's previously articulated small item or impracticability exceptions. See 11 C.F.R. 110.11(e)(i-ii).

On Monday, February 3, attorneys for Revolution Messaging floated a supplemental proposal, which suggested that mobile banner messages could identify the party paying for the advertisement, albeit without the full language typically required under the Commission's regulations. This new proposal comes after the Commission recently extended its consideration of the request for a second time and discussion at its January 16 meeting appeared headed towards a deadlocked 3-3 vote.

The Commission requires four of its six members to vote in favor of issuing an advisory opinion, so without some resolution Revolution Messaging may be forced to continue to advertise without fully knowing whether the small item or impracticability exceptions allow it to post mobile political advertisements without extensive disclaimers.

An Internal Audit and Resulting Amendment Limits Civil Penalty to $8,500 After Under Reporting Disbursements by Nearly $440,000

The Commission also made public the final conciliation agreement reached in MUR 6758, a Commission-initiated action against Ron Zerban for Congress (the "Committee"). This action arose after the Commission's Reports Analysis Division ("RAD") referred the Committee and Randy Bryce, in his official capacity as treasurer, for investigation after its internal reviews showed that the Committee failed to disclose disbursements of nearly $440,000 in its original 12-Day Pre-General Report during the 2012 election.

During the resulting investigation, the Committee admitted to misreporting its disbursements and advised the Commission that it filed amended reports as soon as discrepancies were noticed and an internal audit conducted. Following consideration of the facts in question, and resulting informal conciliation process, the Commission and Committee entered into a voluntary conciliation agreement whereby the Committee agreed to pay a civil fine of $8,500 and to institute policies and procedures to avoid similar errors in the future.

This final agreement likely represents an important step forward for Candidate Rob Zerban, who has raised just $266,242 this cycle in his second attempt to unseat House Budget Committee Chairman Paul Ryan. Putting the Commission's investigation behind him may help Mr. Zerban as he reaches out to donors who contributed nearly ten times that amount during his prior bid to unseat Chairman Ryan in 2012.  

Meeting Schedule

The Commission is scheduled to meet in executive session on Tuesday, February 25 and to hold an open meeting on Thursday, February 27. Agenda documents for those meetings have not yet been released.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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