Cite as PDC Interpretation No. 16-01
Republishing Online Political Advertising And The Application Of RCW 42.17A.005(13)(a)(iii)
The Public Disclosure Commission (Commission) enforces the campaign disclosure and political advertising provisions found in RCW 42.17A and Title 390 WAC, including certain laws and rules defining what constitutes a contribution. This interpretation is intended to provide guidance by informing the public, candidates, and political committees of the Commission's interpretation of the definition of contribution as it relates to duplicating certain online political advertising.
I. Authority
RCW 42.17A.005(13)(a) defines "contribution" and includes:
(ii) An expenditure made by a person in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a political committee, the person or persons named on the candidate's or committee's registration form who direct expenditures on behalf of the candidate or committee, or their agents;
(iii) The financing by a person of the dissemination, distribution, or republication, in whole or in part, of broadcast, written, graphic, or other form of political advertising or electioneering communication prepared by a candidate, a political committee, or its authorized agent; "
WAC 390-05-210 further defines RCW 42.17A.005(13)(a)(ii) as:
(3) Consulting with a state, local or judicial candidate. An expenditure made by a person in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a candidate, the candidate's authorized committee or agent is a contribution to such candidate. An expenditure is presumed to be made in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a candidate, the candidate's authorized committee or agent when:
(a) Any arrangement, coordination or direction by the candidate, the candidate's authorized committee or agent is given to the expending person prior to the publication, distribution, display or broadcast of political advertising or electioneering communications or prior to an expenditure being made by that person supporting that candidate or opposing one or more of that candidate's opponents; or
(b) An expenditure is made based on information about the candidate's plans, projects or needs provided to the expending person by the candidate, the candidate's authorized committee or agent with a view toward having an expenditure made; or
(c) An expenditure is made by, through, in consultation with, or with the assistance of, including the fund-raising assistance of, any person who, during the twelve months preceding the expenditure, is or has been an officer of the candidate's authorized committee; or
(d) The expenditure is made by or in consultation with any person who, during the twelve months preceding the expenditure, is or has been receiving any form of campaign-related compensation or reimbursement from the candidate, the candidate's authorized committee or agent. However, there is no presumption that an expenditure is made in cooperation, consultation, concert or collaboration with, or at the request or suggestion of a candidate, the candidate's authorized committee or agent, when a person performs only ministerial functions for two or more candidates or political committees pursuant to RCW 42.17A.005 and WAC 390-05-243.
II. Discussion
In 1995, the Legislature amended the definition of "contribution" to include the current provisions related to coordination and duplicating political advertising found at RCW 42.17A.005(13)(a)(ii) and (iii). Chapter 397, Laws of 1995.
In 2013, the Commission received a complaint that alleged an over-limit contribution had occurred when a candidate photo and other content copied from a candidate's campaign website was used in the production of a political advertisement that supported the candidate. There had been no coordination between the advertising sponsor and the candidate or the candidate's agents. The candidate was unaware that the advertisement was being produced and the sponsor believed it was making an independent expenditure. The 2013 complaint was the first instance in which the Commission was asked to apply the definition of contribution to copying elements from a candidate's website for use in independent expenditure political advertising.
RCW 42.17A.005(13)(a)(iii) suggests that passive coordination, or duplicating any or all of a candidate's advertisement without the candidate's knowledge, carries the same weight as active coordination. That may have been the case in 1995. Today, we disagree. Today, candidates are expected to have campaign websites. Generally, websites are easily accessed and copying a photo or other content from a website takes little effort. Sharing links to websites or website content is a routine activity for individuals who access them.
The Commission has a dual role to enforce the campaign finance laws so that the public may access campaign disclosure information it is entitled to and to ensure that requirements are not onerous for the regulated community. As a steward of campaign finance disclosure, the Commission has a duty to adapt the laws and rules it enforces to evolving campaign practices.
There is no detriment to the public if the Commission were to interpret that copying a photo from a campaign website for use in other advertising is not republication of a portion of political advertising, in the absence of coordination as described in RCW 42.17A.005(13)(a)(iii). The interpretation would also adapt campaign finance laws to current practice and remove the threat to candidates of unknowingly receiving over-limit contributions.
III. Interpretation
In the absence of coordination as described in RCW 42.17A.005(13)(a)(ii) and WAC 390-05-210(3), copying graphic content from a campaign website and using the content in other political advertising does not constitute a contribution as described in RCW 42.17A.0015(13)(a)(iii).