November 18, 2020
Opinion No. 2020-03
Synopsis: Text messages are a means of contacting persons telephonically. If a text message expressly advocates for the nomination, election or defeat of a clearly identified candidate for state or local office, any such paid for matter must be preceded by a statement which states: “Paid for” or “Sponsored by” followed by the name of the sponsoring organization and 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.
Cited herein: K.S.A. 25-4156 and 25-4181.
TO ALL INTERESTED PERSONS:
Pursuant to K.S.A. 25-4159, the Kansas Governmental Ethics Commission issues this opinion regarding the requirement for paid for by attributions as part of text messages.
ISSUE
The frequency of text messages containing express advocacy for the election or defeat of clearly identified candidates for state and local office is increasing with each election. The commission takes this opportunity to give notice regarding the requirement for such text messages to contain paid for by attributions.
ANALYSIS AND OPINION
A variety of technologies make text messaging possible. Among the most common in use on smart phones today are short message service (SMS), multimedia messaging service (MMS) and iMessage. SMS text messages are only sent over cellular networks. MMS messages are SMS text messages which include images, videos and other media. Text messages using Apple iMessage software can be sent over cellular networks or Wi-Fi using Apple’s servers and bypass phone company servers. Whether SMS, MMS, or iMessage, each technology utilizes telephonic means to contact persons.
Contacting persons to expressly advocate by telephonic means requires an attribution as provided in K.S.A. 25-4156(b)(1)(C):
Telephoning or causing to be contacted by any telephonic means including […] wireless telephone, any paid matter which expressly advocates the nomination, election or defeat of a clearly identified candidate for a state or local office unless such matter is preceded by a statement which states: “Paid for” or “Sponsored by” followed by the name of the sponsoring organization and 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[.]
Therefore, we conclude that text messages which include paid express advocacy are generally required to be preceded by a paid for by or a sponsored by attribution as provided in K.S.A. 25-4156(b)(1)(C). Failure to include such an attribution as required is a violation subject to a civil fine as provided in K.S.A. 25-4181 and punishable as a class C misdemeanor as provided in K.S.A. 25-4156(b)(3). We suggest that affected persons contact Commission staff for further guidance as needed.
Sincerely,
Nick Hale, Chairman
By Direction of the Commission
NH:BB:sf
