Cite as PDC Interpretation No. 08-01

The Public Disclosure Commission implements and enforces the campaign finance reporting requirements in Chapter 42.17A RCW and Title 390 WAC.

The Commission has been informed that there is confusion as to whether or how certain provisions of RCW 42.17A and Title 390 WAC apply to "internal political communications" and specifically how they apply to sponsor identification (the statements such as "paid for by" or "sponsored by")[1] on such campaign-related communications.

The Commission is providing its interpretation on this subject pending possible rulemaking in order to provide guidance at this time, and invites public comment.

Summary

  • Will sponsor identification be required on internal political communications if the communications otherwise satisfy the definition of "political advertising"?

The Commission has determined that a sponsor identification is not required on an internal political communication that also constitutes political advertising, if (1) the communication satisfies the definition of "internal political communication" and thus it is directed from the defined entity to the audience defined in statute and rule[2], and (2) it is otherwise apparent on the face of the communication as to who the true sponsor  or sponsors (original source or sources) is of the political advertising.  The sponsor identification requirement does not apply if there is already an existing exemption in statute or rule for such a disclaimer to be placed on the communication.

Examples of what is "apparent of the face of the communication" include: when the name of the sponsor is placed on a masthead on the internal newsletter or flier, or when the name of the sponsor is placed on the letterhead of the internal letter, or when there is some other obvious statement to the reader of who actually paid for (sponsored) the internal political communication on the face of the communication.[3]  By way of further example, if the name or location of a person on the masthead (e.g. headquarters office) differs from the name or location of the person who actually paid for the communication (e.g. local office), the person who actually paid for the communication (original source) must be provided in a separate sponsor identification.

The Commission will continue to apply RCW 42.17A.005(15)(b)(v), RCW 42.17A.005(21)(g), RCW 42.17A.255, WAC 390-16-313 and WAC 390-05-515 in determining whether a communication is to a "member" and whether it is primarily limited to the internal audience.  The Commission will continue to exclude "internal political communications" from what is considered a contribution, electioneering communication, or an independent expenditure.

Review of Laws, Rules and Analysis

  • What is an "internal political communication"?

The term "internal political communication" is used three times in the state laws.  The term is used to describe what is not otherwise included in definitions of contribution, electioneering communication, or independent expenditure.

RCW 42.17A.005(15)(b)(v) states that a contribution does not include:

An internal political communication primarily limited to the members of or contributors to a political party organization or political committee, or to the officers, management staff, or stockholders of a corporation or similar enterprise, or to the members of a labor organization or other membership organization; "

RCW 42.17A.005(21)(g) states that an electioneering communication does not include:

A mailed internal political communication primarily limited to the members of or contributors to a political party organization or political committee, or to the officers, management staff, or stockholders of a corporation or similar enterprise, or to the members of a labor organization or other membership organization; "

RCW 42.17A.255 states in part that an independent expenditure under that statute (for persons subject to that statute who do not otherwise file a report under RCW 42.17A.220, RCW 42.17.235 or RCW 42.17A.240) does not include:

An internal political communication primarily limited to the contributors to a political party organization or political action committee, or the officers, management staff, and stockholders of a corporation or similar enterprise, or the members of a labor organization or other membership organization; "

Similarly, WAC 390-16-313(2)(c) provides in pertinent part that:

(2) Exempt Activities. The following activities are not considered independent expenditures for purposes of RCW 42.17A.255, [42.17A].630, or [42.17A].320:

 "

(c) An internal political communication primarily limited to (i) the members of or contributors to a political party organization or political committee, (ii) the officers, management staff or stockholders of a corporation or similar enterprise, or (iii) the members of a labor organization or other membership organization "

By rule at WAC 390-05-515 the Commission has provided factors that will be considered in determining whether a communication is to a "member."  The rule also explains what will be considered in determining whether an internal political communication is "primarily" limited to the members of an organization or political committee.[4]

  • What is political advertising?

"Political advertising" is defined in the law and is also addressed in a rule. 

RCW 42.17A.005(37) defines "political advertising" as:

"Political advertising" includes any advertising displays, newspaper ads, billboards, signs, brochures, articles, tabloids, flyers, letters, radio or television presentations, or other means of mass communication, used for the purpose of appealing, directly or indirectly, for votes or for financial or other support or opposition in any election campaign.

WAC 390-05-290 states:

Political advertising does not include letters to the editor, news or feature articles, editorial comment or replies thereto in a regularly published newspaper, periodical, or on a radio or television broadcast where payment for the printed space or broadcast time is not normally required.

"Mass communication" is not otherwise defined by statute or rule.  "Political advertising" does not cross reference "internal political communications" in this statute or rule.

However, given the questions raised regarding sponsor identification and in an effort to provide guidance, at this time, the Commission recognizes the term "mass communication" has a common understanding which implies an external communication to a large population of an unspecified number through a mass form of media intended to reach a broad audience.[5]  In effect, the Commission views this type of communication as the opposite of an internal communication directed to a specific membership or similar statutorily defined audience which has a reciprocal, voluntary and mutually-agreed to relationship with the sponsor of the communication, such as those entities listed in RCW 42.17A.005(15)(b)(v).  These internal communications are also typically sent in a more limited format (newsletter, flier, letter, etc.) unlike radio, television, film, or the like.

This distinction is also consistent with the Commission's statutes and rules which as described treat an internal political communication as a communication that differs from (because it does not qualify as) an electioneering communication, contribution, or independent expenditure under RCW 42.17A.255 or WAC 390-16-313(2).  Therefore, it is reasonable to conclude that "political advertising" may be interpreted as not including "internal political communications" for the purposes of sponsor identification.

Yet, although there is no current specific exemption in statute or rules except for a reference to independent expenditures in WAC 390-16-313(2), to the extent such a communication satisfies both definitions of "internal political communication" and "political advertising," the Commission has determined it not practical to require sponsor identification on all internal political communications.  The Commission has determined the internal political communication should identify the sponsor through a sponsor identification unless otherwise specifically exempted from that requirement in statute or rule,[6] but only if it is not otherwise apparent on the face of the communication who actually paid for or sponsored it.

[1] Sponsor identification is also known as a "disclaimer."  See RCW 42.17A.320; also see WAC 390-18-030.

[2] Members of or contributors to a political party organization or political committee, or to the officers, management staff, or stockholders of a corporation or similar enterprise, or to the members of a labor organization or other membership organization.

[3] Also see PDC Interpretation 07-04 for information regarding Campaign Activities on the Internet.

[4] For example, the Commission has recently determined that communications from mutual insurance companies that satisfy the membership criteria to its member policyholders qualify as "internal political communications."

[5] Wikipedia (2008) provides:

 Mass communication is the term used to describe the academic study of various means by which individuals and entities relay information to large segments of the population all at once through mass media. It is usually understood to relate to newspaper and magazine publishing, radio, television, and film, as they are used both for disseminating news and for advertising.

http://en.wikipedia.org/wiki/Mass_communication.  Wikipedia also describes that that the term "mass" in "mass communication" "suggests that the recipients of media products constitute a vast sea of passive, undifferentiated individuals."  Therefore, a mass communication appears to be a communication unlike one directed to an internal, differentiated audience.

[6] Sponsor identification requirements are at RCW 42.17A.320; also see WAC 390-18-030.

 

Approved:  April 17, 2008
References:  Chapter 42.17A RCW; Title 390 WAC

See also:  RCW 42.17A.005(15)((b)(v), RCW 42.17A.005(21)(g), RCW 2.17A.255, RCW 42.17A.005(37), RCW 42.17A.320, WAC 390-05-515, WAC 390-05-290, and WAC 390-16-313