[EL] IE Republishing Campaign Ad

Mon Nov 18 14:36:11 PST 2013

The FEC regulation contains exceptions where:

*         the "campaign material used consists of a brief quote of materials that demonstrates a candidate's position as part of a person's expression of its own views";

*         the "campaign material is incorporated into a communication that advocates the defeat of the candidate . . . that prepared the material"; and

*         the "campaign material is disseminated . . . in a news story, commentary, or editorial . . . ."

Paul Seamus Ryan
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From: will.moore.law at gmail.com [mailto:will.moore.law at gmail.com] On Behalf Of Will Moore
Sent: Monday, November 18, 2013 5:21 PM
To: David A. Holtzman
Cc: Paul Ryan; Election Law
Subject: Re: [EL] IE Republishing Campaign Ad

Fair use is right there in the statute for copyright law. There's nothing analogous in campaign law.

Moreover, this is an entire republication.  So the nuances of fair use wouldn't even save this if it was a copyright case.

William Moore
The Moore Firm - Business Law
5755 Oberlin Dr., Suite 301, San Diego CA 92121 | www.themoorefirm.net<http://www.themoorefirm.net>
(858) 210-7999 | wmoore at themoorefirm.net<mailto:wmoore at themoorefirm.net>

On Mon, Nov 18, 2013 at 2:00 PM, David A. Holtzman <David at holtzmanlaw.com<mailto:David at holtzmanlaw.com>> wrote:
Surely there must be an exception for "fair use," as with copyright law.

I'm thinking about the "Daisy Ad."
Wikipedia says this about that:
"Though only aired once (by the campaign), it is considered an important factor in Johnson's landslide victory over Barry Goldwater and an important turning point in political and advertising history."

On 11/18/2013 10:18 AM, Paul Ryan wrote:
Will,

The activity you describe would seemingly clearly violate 11 CFR 109.23 if it occurred in a federal race.  Section 109.23 of the FEC's regulations establishes that the "financing of the dissemination, distribution, or republication, in whole or in part, of any broadcast or any written, graphic, or other form of campaign materials prepared by" a candidate campaign committee "shall be considered a contribution for the purposes of the contribution limitations . . . ."  At the federal level, an "independent expenditure-only political committee" (a.k.a. Super PAC) is prohibited from making a contribution to a candidate.

We filed a complaint<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1627:february-27-2012-legal-center-seeks-investigation-of-apparent-illegal-contribution-from-super-pac-to-romney-campaign-&catid=63:legal-center-press-releases&Itemid=61> with the FEC in February 2012 urging investigation of an apparent violation of this provision by the Super PAC Restore Our Future, which paid to air a TV ad produced by Mitt Romney's 2008 campaign committee.  The FEC does not comment publicly regarding complaints until the matter is resolved and we haven't heard anything yet.

Of course, San Diego municipal law and California state law governs San Diego mayoral races and I'm not sure precisely how/whether such republication of campaign material is covered by San Diego and California law.

Paul Seamus Ryan
Senior Counsel
The Campaign Legal Center
215 E Street NE
Washington, DC 20002
Ph. (202) 736-2200 ext. 214<tel:%28202%29%20736-2200%20ext.%20214>
Mobile Ph. (202) 262-7315<tel:%28202%29%20262-7315>
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From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Will Moore
Sent: Monday, November 18, 2013 12:13 PM
To: Election Law
Subject: [EL] IE Republishing Campaign Ad

Here in San Diego, we have a mayoral candidate who ran a TV ad, then his supporting Independent Expenditure org ran exactly the same ad (with a corresponding different disclosure).

Strikes me as a pretty obvious violation, since republishing is the most straightforward kind of message coordination.

Anybody have any thoughts on this or experience from other jurisdictions?

-Will

William Moore
The Moore Firm - Business Law
5755 Oberlin Dr., Suite 301, San Diego CA 92121 | www.themoorefirm.net<http://www.themoorefirm.net>
(858) 210-7999<tel:%28858%29%20210-7999> | wmoore at themoorefirm.net<mailto:wmoore at themoorefirm.net>

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