By Richard Rothfelder, Rothfelder and Falick

With the 2018 Midterm Elections less than a month away, I have received numerous questions from my corporate and individually owned billboard clients regarding political advertising on their billboards: What can be advertised for state and federal elections? What rules apply and how do they differ?  What if the advertising is coordinated with the campaign or politician? What about advertising for causes? Who can display the billboard advertising?

In general, individuals are free to use their billboards to advertise for a cause, and they may advertise for candidates or measures without subjecting themselves to campaign finance limits if their billboard advertising is not coordinated with a candidate or candidate’s committee.  By contrast, for years it was understood that corporations were barred from participating in politics on equal footing with individual citizens and in exercising their rights under the First Amendment. However, the Supreme Court’s 2010 decision in Citizens United v. FEC and subsequent state reforms have paved the way for corporations to exercise their First Amendment rights, in this case, the right to promote. In most instances, corporations are now free to advertise for their particular cause, measure, or candidate, as long as the advertising for a given measure or candidate is not made in coordination with the candidate and contains the requisite disclaimer. As such, corporations or individuals could post on their  billboards advertisement for a cause, such as “Judge Kavenaugh Deserves a Fair Hearing,” or “Judge Kavenaugh’s Accusers Deserve Fair Hearings,” without subjecting themselves to the full array of election laws at the state and federal level.

Advertising for candidates at the local, state, and federal levels presents a more nuanced regulatory framework to comply with, when compared to advertising done by a corporation for a cause. The simplest avenue for corporations wishing to utilize their billboards in this manner is to proceed without coordination or prearrangement with the candidate or their campaign. At the federal level, this type of independent advertising for a clearly identified candidate’s election or defeat is categorized as an “Independent Expenditure,” and in Texas as a “Direct Campaign Expenditure.” However the billboard advertisement or message is classified, the laws the corporation and candidate must comply with are substantially less burdensome.  Under federal and state law, these uncoordinated expenditures for political advertising must still provide a disclaimer notice in the advertisement. The disclaimer must include, among others 1) who paid for the advertisement, 2) a statement that the advertisement was not authorized by the candidate or their committee, and 3) the contact information (URL, telephone number, etc) of the person who paid for the advertisement.

The legal distinction between coordinated and uncoordinated expenditures stems from broad policy considerations underlying many of our nation’s election laws, such as preventing corruption through corporate political spending in return for improper influence over the candidate. However, these legitimate concerns are balanced against the equally important rights under the First Amendment of freedom of expression, including the promotion of political ideas and candidates on billboards.

[wpforms id=”9787″]

Paid Advertisement