Should a Candidate’s Facebook Page Contain a Disclaimer?
by Christine Stuart | Aug 5, 2010 7:40pm
(10) Comments | Commenting has expired
Posted to: Election 2010, Legal, State Capitol
An official with the State Elections Enforcement Commission thinks so, but proponents and opponents of campaign finance reform believe that’s just “silly.”
Beth Rotman, the executive director of the Citizens’ Election Program, said the campaign finance law can only regulate expenditures and contributions, not speech. However, she disagrees with Rep. Timothy O’Brien of New Britain, who believes speech on the Internet by candidates and their supporters is free.
“I don’t believe it’s free,” Rotman said in an interview at the Capitol Thursday. As a regulatory agency she said she has to follow the law and at the moment the law says it’s an expenditure for a candidate and has to be reported and itemized.
She said if she accepted the idea that the Internet was free then the disclosure requirement would be lost.
If a supporter expresses their support for a candidate it could be considered an in-kind contribution to the campaign, but Rotman understands reporting these utterances could be seen as problematic for a campaign. She said this is something that hasn’t been actively enforced and would be considered de minimus under the bill the Senate overrode Thursday.
However, there’s no exemption for it under the current law so she couldn’t say whether it’s something that would or wouldn’t be enforced.
“We get stuck in the unenviable position of interpreting this and it happens to be what the law is,” Rotman said.
O’Brien disagrees that these utterances by candidates and their supporters on social networking sites like Facebook and Twitter are covered under the current law. He said if that’s the SEEC’s interpretation then it’s “really nitpicking.”
“The clean elections law was designed to regulate money, not speech,” he said.
O’Brien argued that if he included a disclaimer for his campaign on Twitter, which only allows 140 characters, the disclaimer alone would account for 96.
“It’s a little silly,” he said.
Rotman said she understands that it’s impracticable to ask for a disclaimer on Twitter. And she said none of the candidates using the system in 2008 were ever fined for the de minimus contributions or expenditures.
Senate Minority Leader John McKinney of Fairfield said he doesn’t understand how posting something on Facebook is any different than standing up in a crowded restaurant and shouting your support for a specific candidate.
“It’s speech,” McKinney said. “It appears they want to interpret the law their way and not the way it was written.”
House Minority Leader Lawrence Cafero of Norwalk said it’s like putting a price tag on a conversation.
“They’re making it up as they go along,” he said.
O’Brien argues in a blog post titled “State Elections Enforcement Commission FAIL,”that Internet services and social networking sites should be exempt from the campaign finance law.
If the SEEC‘s interpretation of the law is correct, then it “could make it harder or even impossible for everyday people to use the great promise that the internet offers for democracy,” O’Brien wrote.
“The election laws are written to give SEEC a lot of discretion so that they can exercise common sense in making sure that the real purpose of campaign finance law is fulfilled.”
O’Brien’s blog post was widely distributed over the Internet on social networking sites this week and lawmakers running for re-election were quick to respond to it by putting up notices on their Facebook pages.
Rep. Tony Hwang of Fairfield and Rep. Michael Lawlor of East Haven wrote similar entries which read: “And, if anyone cares, everything that I write on this Facebook page is approved by me, but nothing anyone else writes on here is approved by me. And, for what it is worth, nothing anywhere on this Facebook page is paid for by me or by the Committee to Re Elect Mike Lawlor, Sam Giglio, Treasure, because this is all free. So, I think and assume these posts are saved forever unless deleted by me, so there’s your disclaimer for everything previously and subsequently posted on this site.”
Hwang’s entry had his committee name and campaign treasurer’s name instead of Lawlor’s.
(10) Comments
posted by: Martha H | August 5, 2010 8:58pm
Free??
Am I the ONLY ONE paying Christine $4.95 per comment here??
Jumpin Jehosafats!!
posted by: joemustgo | August 5, 2010 9:53pm
Never mind the law, SEEC is reading too closely that bumper sticker “Free Speech Isn’t Free”!
posted by: Aldon_Hynes | August 6, 2010 7:12am
I wrote a response to Tim’s blog post in my blog post, <a >Social Media and Independent Campaign Expenditures</a>, where I explore Federal Campaign Law.
Based on this, and other material, I believe that Mr. Jenkins is incorrect in placing blame with the legislators. I believe that the SEEC is not interpreting the law properly.
From what I have heard, they are basing their interpretation on desired outcomes instead of on what the law really says and how it needs to be interpreted in terms of other jurisprudence.
The aspect where Mr. Jenkins could be considered right is that the law could be rewritten more clearly so that there would be less room for the SEEC to make erroneous interpretations, and my understanding is that the proposed modification to the Citizen’s Election Program help with that clarity.
posted by: streever | August 6, 2010 10:56am
“Should a Candidate’s Facebook Page Contain a Disclaimer?”
Aldon is correct that the SEEC is wrong on this. I wonder if it’s because they don’t understand the internet?
Facebook actually IS free. You can’t consider the cost of the internet connection anymore than you can consider the cost of the shoes the candidate wears to canvass in.
Does the candidate have to declare that those were paid for by the campaign?
What about a 10 year old laptop which the candidate uses to update their facebook from a public park with free city-wide wi-fi? Do they have to pay the city for that wi-fi?
It’s ridiculous, specious, and nitpicky to target candidates for using blogspot (free), facebook (free), or twitter (free), and a clear misunderstanding by the SEEC.
These types of rulings and decisions are a big part of why our elected officials are not transparent. How can they be when they aren’t even allowed to “tweet” without a disclaimer?
posted by: William Jenkins | August 6, 2010 9:38pm
Aldon Hynes, let’s look at the law:
“Sec. 9-621. (Formerly Sec. 9-333w). Political advertising. (a) No individual shall make or incur any expenditure with the cooperation of, at the request or suggestion of, or in consultation with any candidate, candidate committee or candidate’s agent, and no candidate or committee shall make or incur any expenditure including an organization expenditure for a party candidate listing, as defined in subparagraph (A) of subdivision (25) of section 9-601, for any written, typed or other printed communication, or any web-based, written communication, which promotes the success or defeat of any candidate’s campaign for nomination at a primary or election or solicits funds to benefit any political party or committee unless such communication bears upon its face (1) the words “paid for by” and the following: (A) In the case of such an individual, the name and address of such individual; (B) in the case of a committee other than a party committee, the name of the committee and its campaign treasurer; or (C) in the case of a party committee, the name of the committee, and (2) the words “approved by” and the following: (A) In the case of an individual making or incurring an expenditure with the cooperation of, at the request or suggestion of, or in consultation with any candidate, candidate committee or candidate’s agent, the name of such individual; or (B) in the case of a candidate committee, the name of the candidate.
Aldon, here are the key words:
“or any web-based communication.”
This is absolutely not a case of “(the) SEEC is not interpreting the law properly.” Unlike other instances where I have taken issue with the SEEC for reading something into the law that isn’t there, the law is crystal clear in this case and it’s the SEEC’s responsibility to enforce it per 9-7b.
There’s no wiggle room here. The Legislature recently added the “web-based communication” language, the SEEC did not. The SEEC is an executive branch agency, they are not part of the Legislative branch of government. The only thing they can do is propose Regulations under Chapter 54 of the Connecticut General Statutes and those have to be ultimately approved by the Legislature.
As I said before, if the lawmakers don’t like the law then change it. Don’t blame the SEEC for doing their job.
posted by: William Jenkins | August 7, 2010 12:15am
The way to fix this is to add something to 9-601b(3)(b) “The term ‘expenditure’ does not mean:” whatever the Legislators think would be best. I would hope they’d seek input from the SEEC and work together with them and find an appropriate solution.
I honestly can’t come up with a proposed solution myself. This is where the process should be allowed to work the way it was designed. A legislator proposes a bill and the GAE Committee holds a public hearing on it and solicits input from people and then drafts a bill after carefully considering the testimony presented at the public hearing that solves the problem.
I do agree that postings on internet bulletin boards, chat rooms, etc., should be exempt but what about if I as a campaign solicitor sent out a mass email soliciting funds for a candidate or if I as a candidate sent out a mass email to tens of thousands of people asking them to vote for me? I think most of us would agree those should both have a 9-621(a) attribution even though some may say “Yeah but it didn’t cost me anything” because this is where I agree with Beth Rotman, the internet is not free.
And by the way Rep. O’Brien, this issue has nothing to do with what you call “clean elections” otherwise known as the “Citizens’ Election Program” which is Chapter 157 of the statutes. The problem being discussed here is a Chapter 155 or “Campaign Finance” issue which applies to both participating and nonparticipating candidates.
posted by: Aldon_Hynes | August 7, 2010 8:50am
William, I believe you are missing the crux of the issue. The issue is not “web-based communications”. To the extent that there is an expenditure on “web-based communications”, the disclosure rules should apply.
The issue is “expenditure”. Tim points out the error of considering posting on free websites “expenditures”. On top of that as I pointed out the Federal interpretation of free online sites that states that postings to such sites are not expenditures.
We could argue whether or not the legislature needs to be clearer in its definition of expenditure, but I believe that common sense as well as the FEC definitions should be sufficient.
posted by: William Jenkins | August 8, 2010 11:44pm
Aldon, the FEC definitions are irrelevant here, this is an issue regarding state campaign finance laws, not the Federal laws. I don’t know how you can say that twitter and facebook are not “web-based communications” because they definitely are.
What is “common sense” or not is a matter of personal opinion. Your definition of “common sense” is not the law of the land nor is mine.
I’m not missing the “crux” of the issue at all, as Beth Rotman said, the internet is not free.
As I mentioned earlier, if I send out one email or ten thousand emails soliciting money or votes, should there be a disclaimer? Using your logic, the answer would be “no” and I don’t think you’re going to get anyone at the SEEC or in the Legislature to agree with you on that one.
Let’s take it one step further, if I send out written letters in the interoffice mail system at a place of employment asking for money or soliciting votes for a candidate, should there be a disclaimer? I can pretend it didn’t cost me anything by saying I found the paper in the wastebasket and interoffice mail doesn’t require postage stamps. Would your answer depend on if I told you I sent out one or ten thousand? And never mind what you’re definition of “common sense” is here because that’s irrelevant, we all have to follow the law.
If Rep. Tim O’Brien feels there is an error in the law then he should take a leadership role in this and propose legislation to fix the law, especially since he’s on the GAE Committee.
posted by: Aldon_Hynes | August 9, 2010 9:09am
William - While you might consider the opinions of experts in election law from non controlling jurisdictions irrelevant, I do not. As you said, a matter of opinion.
I don’t know where you got the idea that I say “say that twitter and facebook are not ‘web-based communications’”. I don’t say that. I don’t believe that.
As I said in my previous message, the concern is not whether or not something is web-based communications, it is whether or not there is an expenditure.
That is why I refer to Rep. O’Brien’s discussion of the nature of an expenditure as well as experts in other jurisdictions as they have considered the definition of an expenditure.
While providing a free service, like Facebook, is not free to the owners of Facebook, and while providing free access, such as public libraries, is not free to the library, with both of those, people using these free services are not making an expenditure.
If you wish to go after people making the expenditures, you would need to go after Facebook or the public libraries. However, Section 230 of the Communications Decency Act would most likely indemnify them.
posted by: William Jenkins | August 5, 2010 8:19pm
These legislators shouldn’t be blaming Beth Rotman or the SEEC, they should be blaming themselves since they wrote the law especially my friend Tim O’Brien who is on the GAE Committee.
The SEEC is only as good as the laws that the Legislature passes. The solution, pass better laws or fix the ones like this one that need fixing, don’t blame the SEEC.