Way back in May of 2015, we advised readers of these Workerlaw Campaign Finance eUpdates of an enforcement action brought by the PDC against the Kitsap County Deputy Prosecuting Attorney Guild (“the Guild”), arising from the fact that the Guild, which spent a total of $5,753 for a series of newspaper and on-line advertisements in the Kitsap Sun in support of Russell Hauge’s candidacy for Kitsap County Prosecuting Attorney, used content taken from Mr. Hauge’s publicly available campaign website, including the heading (which used the same font, colors, and graphic design), a photo of Mr. Hauge, and a quote from Congressman Derek Kilmer in support of Mr. Hauge. The Guild’s political advertising also included some of the law enforcement endorsements used by the Hauge campaign on its website.
After an investigation, PDC staff concluded that 20% of the Guild’s political advertising content was copied from the Hauge campaign website. On this basis, PDC staff contended that the ad constituted a contribution to the campaign of $1,151, which was all in excess of the $950 per-candidate contribution limit (the Guild had already made a $950 contribution to the Hauge campaign).
PDC’s staff based this conclusion on RCW 42.17A.005(13)(a)(iii), which defines “Contribution” as including “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(2) (“Duplicating political advertising”) says almost exactly the same thing.
As it turned out, although the Guild stipulated to having committed this violation, the Commissioners of the PDC refused to accept that stipulation, ruling instead (on June 10, 2015) that the Guild’s conduct did not constitute an in-kind contribution to Mr. Hauge’s campaign. Unfortunately, the Commissioners’ ruling does not explain how or why they reached that conclusion.
This issue has come up again because it is election time once more, and once more the urge to download and use material from candidate’s websites, especially high-quality photos, arises. The suggestion has been made that because of the PDC’s June 2015 ruling, it’s now clear sailing to do this.
However, we caution political committees and others to be wary in this regard. Clearly, PDC staff believed in 2015, and may still believe, that copying any material from a candidate’s website does constitute “dissemination, distribution, or republication” of “political advertising or electioneering communication prepared by a candidate, a political committee, or its authorized agent.” That belief is not obviously inconsistent with the statute or the WAC. While staff is probably less likely to pursue a claim like this in light of the Commission’s June 2015 ruling, the Commission’s line-up has changed since then, and there is no way to know for sure that staff would not once more vigorously pursue this type of alleged malfeasance.
In addition, the real risk these days to political committees and others who arguably step over the line in terms of campaign contributions, expenditures, or reporting is not a that a complaint will be made to the PDC, which metes out fairly mild punishments, but that a 45-day letter will be written to the Washington State Attorney General’s office threatening a private suit (a “citizen’s action”) under RCW 42.17A.765(4) if the AG’s office takes no action. Should that occur, the target of the letter will be faced with a Hobson’s choice – seek to persuade the AG’s office that no violation occurred, but then face being hit with a potentially costly lawsuit by a political enemy, or fall on its sword and seek to be sued by the AG’s office, thus avoiding any citizen’s action but incurring other costs, both economic and political.
In light of the above, we continue to counsel caution in using any material from a candidate’s website in your political advertising. While good arguments can be made that material such as downloaded photographs is not, by itself, “political advertising” the use of which constitutes a contribution to that candidate, it does not appear to us that the benefits of taking advantage of this cheap and easily obtainable resource outweigh what we still believe to be the substantial risk involved.