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POLITICAL ADVERTISING

What You Need To Know

Revised July 19, 2011


The Texas Election Law requires certain disclosures and notices on political advertising. The law also prohibits certain types of misrepresentation in political advertising and campaign communications. This brochure explains what you need to know to insure that your political advertising and campaign communications comply with the law.

If you are not sure what the law requires, do the cautious thing. Use the political advertising disclosure statement whenever you think it might be necessary, and do not use any possibly misleading information in political advertising or a campaign communication. If you are using political advertising or campaign communications from a prior campaign, you should check to see if the law has changed since that campaign.

Candidates for federal office should check with the Federal Election Commission at (800) 424-9530 for information on federal political advertising laws.


REQUIRED DISCLOSURE ON POLITICAL ADVERTISING

I. What Is Political Advertising?

The disclosure statement and notice requirements discussed in this section apply to "political advertising." In the law, "political advertising" is a specifically defined term. Do not confuse this special term with your own common-sense understanding of advertising.

To figure out if a communication is political advertising, you must look at what it says and where it appears. If a communication fits in one of the categories listed in Part A (below) and if it fits in one of the categories listed in Part B (below), it is political advertising.

Part A. What Does It Say?

1.  Political advertising includes communications supporting or opposing a candidate for nomination or election to either a public office or an office of a political party (including county and precinct chairs).

2.  Political advertising includes communications supporting or opposing an officeholder, a political party, or a measure (a ballot proposition).

Part B. Where Does It Appear?

1.  Political advertising includes communications that appear in pamphlets, circulars, fliers, billboards or other signs, bumper stickers, or similar forms of written communication.

2.  Political advertising includes communications that are published in newspapers, magazines, or other periodicals in return for consideration.

3.  Political advertising includes communications that are broadcast by radio or television in return for consideration.

4.  Political advertising includes communications that appear on an Internet website.

II. When Is A Disclosure Statement Required?

The new law provides that political advertising that contains express advocacy is required to include a disclosure statement. The person who causes the political advertising to be published, distributed, or broadcast is responsible for including the disclosure statement.

The new law does not define the term "express advocacy." However, the law does provide that political advertising is deemed to contain express advocacy if it is authorized by a candidate, an agent of a candidate, or a political committee filing campaign finance reports. Therefore, a disclosure statement is required any time a candidate, a candidate's agent, or a political committee authorizes political advertising.

The precise language of political advertising authorized by someone other than a candidate, the candidate's agent, or a political committee will determine if the advertising contains express advocacy and is therefore required to include a disclosure statement. Generally, the question is whether the communication expressly advocates the election or defeat of an identified candidate, or expressly advocates the passage or defeat of a measure, such as a bond election. The inclusion of words such as "vote for," "elect," "support," "defeat," "reject," or "Smith for Senate" would clearly constitute express advocacy, but express advocacy is not limited to communications that use those words. Similar phrases, such as "Cast your ballot for X," would also constitute express advocacy. Additionally, in 2007, the United States Supreme Court held that an advertisement included express advocacy or its functional equivalent “if the ad is susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” FEC v. Wisconsin Right to Life, Inc., 127 S.Ct. 2652 (2007). It is a question of fact whether a particular communication constitutes express advocacy. If you are not sure whether political advertising contains express advocacy, do the cautious thing and include the disclosure statement. That way there is no need to worry about whether you have violated the law.

Remember: The concept of "express advocacy" is only relevant in determining whether political advertising is required to include a disclosure statement. The political advertising laws governing the right-of-way notice, misrepresentation, and use of public funds by political subdivisions will apply to political advertising regardless of whether the advertising contains express advocacy.

III. What Should The Disclosure Statement Say?

A disclosure statement must include the following:

1.  the words "political advertising" or a recognizable abbreviation such as "pol. adv."; and

2.  the full name of one of the following: (a) the person who paid for the political advertising;(b) the political committee authorizing the political advertising; or (c) the candidate or specific-purpose committee supporting the candidate, if the political advertising is authorized by the candidate.

The disclosure statement must appear on the face of the political advertising.

The advertising should not be attributed to entities such as "Committee to Elect John Doe" unless a specific-purpose committee named "Committee to Elect John Doe" has filed a campaign treasurer appointment with the Ethics Commission or a local filing authority.

IV. Are There Any Exceptions To The Disclosure Statement Requirement?

The following types of political advertising do not need the disclosure statement:

1.  t-shirts, balloons, buttons, emery boards, hats, lapel stickers, small magnets, pencils, pens, pins, wooden nickels, candy wrappers, and similar materials;

2.  invitations or tickets to political fundraising events or to events held to establish support for a candidate or officeholder;

3.  an envelope that is used to transmit political advertisement, provided that the political advertisement in the envelope includes the disclosure statement;

4.  circulars or fliers that cost in the aggregate less than $500 to publish and distribute; and

5.  political advertising printed on letterhead stationery, if the letterhead includes the nameof one of the following: (a) the person who paid for the advertising, (b) the political committee authorizing the advertising, or, (c) the candidate or specific-purpose committee supporting the candidate, if the political advertising is authorized by the candidate. (Note: There is also an exception for holiday greeting cards sent by an officeholder, provided that the officeholder's name and address appear on the card or the envelope.)

V. What Should I Do If I Discover That My Political Advertising Does Not Contain A Disclosure Statement?

The new law prohibits a person from using, causing or permitting to be used, or continuing to use political advertising containing express advocacy if the person knows it does not include the disclosure statement. A person is presumed to know that the use is prohibited if the Texas Ethics Commission notifies the person in writing that the use is prohibited. If you receive notice from the Texas Ethics Commission that your political advertising does not comply with the law, you should stop using it immediately.

If you learn that a political advertising sign designed to be seen from the road does not contain a disclosure statement or contains an inaccurate disclosure statement, you should make a good faith attempt to remove or correct those signs that have been distributed. You are not required to attempt to recover other types of political advertising that have been distributed with a missing or inaccurate disclosure statement.

VI. The Fair Campaign Practices Act.

The Fair Campaign Practices Act sets out basic rules of decency, honesty, and fair play to be followed by candidates and political committees during a campaign. A candidate or political committee may choose to subscribe to the voluntary code by signing a copy of the code and filing it with the authority with whom the candidate or committee is required to file its campaign treasurer appointment. A person subscribing to the code may indicate that fact on political advertising by including the following or a substantially similar statement:

(Name of the candidate or political committee, as appropriate) subscribes to the Code of Fair Campaign Practices.

VII. Special Rule For Judicial Candidates, Officeholders, and Committees.

Candidates for the Supreme Court, Court of Criminal Appeals, courts of appeals, district courts, statutory county courts (county courts-at-law), and statutory probate courts are required to file a form declaring their intent to either comply with or exceed the voluntary expenditure limits of the Judicial Campaign Fairness Act. A candidate who has declared an intent to comply with the expenditure limits, as well as a specific-purpose committee supporting such a candidate, may state the following in political advertising:

Political advertising paid for by (name of candidate or committee) in compliance with the voluntary limits of the Judicial Campaign Fairness Act.

If a candidate declares an intent to exceed the expenditure limits, however, both the candidate and any specific-purpose committee supporting the candidate must include in their political advertising the following statement:

Political advertising paid for by (name of candidate or committee), (who or which) has rejected the voluntary limits of the Judicial Campaign Fairness Act.


ROAD SIGNS

I. When Is The "Right-Of-Way" Notice Required?

All written political advertising that is meant to be seen from a road must carry a "right-of-way" notice. It is a criminal offense to omit the "right-of-way" notice in the following circumstances:

1.  if you enter into a contract or agreement to print or make written political advertising meant to be seen from a road; or

2.  if you instruct another person to place the written political advertising meant to be seen from a road.

II. What Should The "Right-Of-Way" Notice Say?

Section 255.007 of the Texas Election Code prescribes the exact language of the notice:

NOTICE: IT IS A VIOLATION OF STATE LAW
(CHAPTERS 392 AND 393, TRANSPORTATION CODE)
TO PLACE THIS SIGN IN THE RIGHT-OF-WAY OF A HIGHWAY.

Note: The notice on political advertising signs printed or made before September 1, 1997, contained a citation to a prior law. You may continue to use those signs if they otherwise comply with the law.

III. Do Yard Signs Have To Have The "Right-Of-Way" Notice?

Yes. The "right-of-way" notice requirement applies to signs meant to be seen from any road. The notice requirement assures that a person responsible for placing signs is aware of the restriction on placing the sign in the right-of-way of a highway.

IV. What About Bumper Stickers?

Bumper stickers do not need the "right-of-way" notice. They do, however, need a political advertising disclosure statement.

V. Where May I Place My Signs And How Long May Signs Be Posted?

For information about exactly where you may or may not place signs, or for information regarding the length of time your signs may be posted, check with your city or county government and with the Texas Department of Transportation at (512) 416-2901.


MISREPRESENTATION

I. Are There Restrictions On The Contents Of Political Advertising?

Political advertising and campaign communications may not misrepresent a person's identity or official title, nor may they misrepresent the true source of the advertising or communication. The election law does not address other types of misrepresentation in political advertising or campaign communications.

Note that the misrepresentation rules apply to both political advertising and campaign communications. "Campaign communication" is a broader term than "political advertising."

A "campaign communication" means "a written or oral communication relating to a campaign for nomination or election to public office or office of a political party or to a campaign on a measure."

II. Misrepresentation Of Office Title.

A candidate may not represent that he or she holds an office that he or she does not hold at the time of the representation. If you are not the incumbent in the office you are seeking, you must make it clear that you are seeking election rather than reelection by using the word "for" to clarify that you don't hold that office. The word "for" must be at least one-half the type size as the name of the office and should appear immediately before the name of the office. For example, a non-incumbent may use the following formats:

Vote John Doe for Attorney General   

 John Doe for
Attorney General


III. Misrepresentation Of Identity Or Source.

A person violates the law if, with intent to injure a candidate or influence the result of an election, the person misrepresents the source of political advertising or a campaign communication or if the person misrepresents his or her own identity or the identity of his or her agent in political advertising or in a campaign communication. (If someone else is doing something for you, that person is your agent.) For example, you may not take out an ad in favor of your opponent that purports to be sponsored by a notoriously unpopular group.

IV. Use Of State Seal.

Only officeholders may use the state seal in political advertising.

 

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