August 23, 2007
Opinion No. 2007-11
TO ALL INTERESTED
PERSONS:
Pursuant to K.S.A. 25-4159, the Kansas Governmental Ethics
Commission takes this opportunity to issue its opinion to clarify
questions regarding the use of personal and campaign addresses and
email communications under the Campaign Finance Act, K.S.A. 25-4142
et seq.
QUESTIONS:
1. May legislators and other state and local officers include
their campaign or personal website, email, or postal addresses in
newsletters or other communications that are generated or
distributed using public funds, machinery, equipment or
supplies?
2. Can a website, email or other internet communication
constitute political advertising subject to the disclosure
statements required by K.S.A. 25-4156, as amended by L. 2007, Ch.
196, § 4?
OPINION:
Regarding the first question, K.S.A. 25-4169a prohibits the use
of public funds, equipment or supplies to expressly advocate the
election or defeat of any candidate as follows:
“(a) No
officer or employee of the state of Kansas . . . shall use or
authorize the use of public funds or public vehicles, machinery,
equipment or the time of any officer or employee of . . . such
governmental agency . . . to expressly advocate the nomination,
election or defeat of a clearly identified candidate to state or
local office. . . .”
The prohibitions of K.S.A. 25-4169a apply only to express
advocacy. K.S.A. 2006 Supp. 25-4143(h) defines the phrase
“expressly advocate the nomination, election or defeat of a
clearly identified candidate” to mean:
“any
communication which uses phrases including, but not limited to:
(1) ‘Vote
for the secretary of state’; (2) ‘re-elect your
senator’; (3) ‘support the democratic nominee’;
(4) ‘cast your ballot for the republican challenger for
governor’; (5) ‘smith for senate’; (6) ‘Bob
Jones in ‘98'; (7) ‘vote against Old Hickory’;
(8) ‘defeat’ accompanied by a picture of one of more
candidates; or (9) ‘Smith’s the one.’”
It is our opinion that a website, email or postal address
expressly advocates the nomination, election or defeat of a
candidate if that address contains words meeting the definition of
express advocacy pursuant to K.S.A. 2006 Supp. 25-4143(h).
Therefore, including a campaign or personal website, email or
postal address in a communication generated or distributed using
public funds, machinery or equipment is a violation of the Campaign
Finance Act if that address expressly advocates for or against a
candidate. Official state or local office website, email or postal
addresses issued and maintained by a state or local government
would not be considered express advocacy.
The second question concerns the application of K.S.A. 25-4156,
as amended by L. 2007, Ch. 196, § 4, which defines corrupt
political advertising as follows:
“Corrupt
political advertising of a state or local office is: . . .
(C) publishing
or causing to be published any brochure, flier or other political
fact sheet which expressly advocates the nomination, election or
defeat of a clearly identified candidate for a state or local
office, unless such matter is followed by a statement which states:
‘Paid for’ or ‘Sponsored by’ followed
by
the name of the
chairperson or treasurer of the political or other organization
sponsoring the same or the name of the individual who is
responsible therefor.
The provisions
of this subsection (C) requiring the disclosure of the name of an
individual shall not apply to individuals making
expenditures in an aggregate amount of less than $2,500 within a
calendar year. . . . ” (Emphasis added.)
The question has arisen whether the disclosure requirements of
this statute apply to a website, email or other internet
communication that expressly advocates for or against a candidate.
In Opinion No. 2004-02 we considered whether material posted on a
website was published, and stated as follows:
“The
American Heritage Dictionary defines the word ‘publish’
as: ‘1) To prepare and issue (printed material) for public
distribution or sale. 2) To bring to the public attention:
announce.’ The American Heritage Dictionary of the English
Language, Fourth Edition Copyright © 2000 by Houghton
Mifflin Company. The Commission now determines that information
posted on a website has been brought to the public’s
attention and therefore, has been published. Consequently, such
material requires a ‘paid for by’ disclaimer if the
material expressly advocates the nomination, election or defeat of
a clearly identified candidate for state or local
office.”
It is our opinion that an email or other internet communication
that expressly advocates will be considered political advertising
if it is published. K.A.R. 19-20-4 clarifies that business cards,
door hangers, postcards and fund-raiser invitations are subject to
the disclosure requirements of K.S.A. 25-4156, as amended by L.
2007, Ch. 196, §. 4. Both the statute and the regulation were
enacted before the widespread use of political internet
communications; however, we believe the same analysis used for
communications written on paper and distributed by hand or through
the postal service should be used for internet communications to
determine whether they constitute political advertising subject to
the disclosure requirements of K.S.A. 25-4156, as amended by L.
2007, Ch. 196, § 4. Therefore, an email or internet
communication expressly advocating the nomination, election or
defeat of a clearly identified candidate for a state or local
office may be published political advertising depending on its
breadth of distribution. If the email or other internet
communication is distributed so that it is brought to the
public’s attention, it will require a “paid for”
or “sponsored by” disclosure statement. It should be
noted that these requirements do not apply to individuals
who spend less than $2,500 within a calendar year.
Sincerely,
Sabrina K. Standifer, Chairwoman
by Direction of the Commission
SKS:DV:dlw
