Thursday’s open meeting of the Federal Election Commission featured debate on the exemption of “banner” political ads on mobile devices from disclaimer requirements and a call for public comments on an interpretive rule regarding the reporting of super PAC expenditures in presidential primaries. The commission also approved two audit recommendations.

Mobile ad disclaimers

Revolution Messaging, a Washington advertising agency that specializes in crafting mobile ads for progressive political committees, among other groups, is seeking an advisory opinion as to whether its clients’  mobile political ads could be exempted from the inclusion of the disclaimer notice generally required in public political communications.

Federal regulations allow for the exemption of certain types of political media from this requirement — that the individual or organization purchasing the ad identify itself — particularly in cases where the inclusion of this information would be overly inconvenient or impractical. Bumper stickers, pins, buttons, pens and “similar small items” are not the type of political media that could readily fit a long statement about the person or committee who paid for them and get a pass from the disclaimer requirement. Likewise, a candidate who wants to scare up support by contracting a pilot for political “skywriting” does not have to fret over whether the plane had enough fuel to spell out “paid for by Americans for Stunt Flying, and not authorized by any candidate or candidate’s committee” across the sky.

Most of Thursday’s discussion centered around whether banner ads that pop up on the screens of smart phones and other mobile devices when users access an app or website would qualify for the inconvenience exemption. Mobile advertisers are forced to work within a constrained number of pixels, in some cases as little as 120 x 20, which Revolution Messaging’s lawyers argue is not sufficient space to include a full disclaimer statement.

While an advertiser could ostensibly pay for a larger format, or a more in-depth ad with ‘rollover’ technology that could display a full disclaimer, these are more expensive options that may be out of reach for many smaller committees.

At the recommendation of Commissioner Ellen Weintraub, a Democrat, Revolution Messaging will submit a revised advisory opinion request seeking a narrower exemption for the mobile banner ads.

Reporting independent expenditures in presidential primary elections – chime in!

The FEC invited public comment on an interpretive rule regulating how super PACs would report independent expenditures — not targeted at any specific state — during the presidential primary season. There are two reporting cycles for committees making independent expenditures in an election. If it is more than 20 days before an election, any committee whose aggregate spending on independent expenditures totals to $10,000 or more must report every independent expenditure to the FEC within 48 hours of the expenditure being “publicly distributed.” When it is less than 20 days before an election every committee that spends an aggregate of more than $1,000 on independent expenditures must report these expenditures within 24 hours.

The presidential primary season, however, is made up of a host of different races falling on different dates. A super PAC that makes an independent expenditure targeted at a specific state’s primary could confidently say whether this expenditure was made more or less than 20 days before the primary election, but a nationally targeted ad is trickier to fit into this reporting regime.

The commission offered three different drafts of an interpretive rule to clarify how nationally-focused independent expenditures should be reported during primary season. Draft A recommends that an IE committee divide their expenditure by the number of state primaries that have not yet occurred and to report each of these portions separately. Drafts B and C contend that such a reporting regime would be overly onerous as well as confusing for disclosure purposes. Draft B suggests that these committees “use the the first day of the candidate’s nominating convention as the date of the primary,” while C calls for the use of the date of the next upcoming primary.

It is not yet clear what format the commission will use to solicit public comments for this interpretive rule, though the process will be publicized when it is decided.