What Assets from a Candidate Campaign Can Independent Expenditure Campaigns Use?
What information independent expenditure (IE) campaigns can use depends on who you ask, and what set of laws you’re covered by. In recent years, you may have seen candidate campaigns that appear to bend over backward to make photos and b-roll videos publicly available on their website (a classic example of this being “McConnelling,” which went viral in 2014). Why? What are voters going to do with all this stuff? Well, it turns out that in most cases, the audience isn’t the run-of-the-mill voter at all. These campaigns may instead be trying to make information publicly available for independent expenditure campaigns to use.
A bit of context may be helpful. Currently, the Federal Election Commission (more commonly known as the FEC, which decides the rules about federal candidate and IE coordination in House of Representatives, Senate, and Presidential races) is deadlocked on the issue of what, if any, public campaign photos or videos independent expenditures can legally use for positive spots. In the interim, this fact has led attorneys to come to different conclusions on what exactly an independent expenditure campaign can use, and how much.
In the absence of clear guidance from the Federal Election Commission, legal experts have grappled with the permissible boundaries of utilizing campaign-related materials for independent expenditure campaigns. The legal community remains divided on this matter. Some legal minds advocate for a cautious approach, advising independent expenditure campaigns to avoid utilizing content from candidate campaigns due to the potential legal uncertainties that surround this usage. This perspective emphasizes the need for independent expenditure campaigns to procure their own visual assets from sources like Getty Images or through commissioned photographers. This cautious stance reflects a commitment to staying on firm legal ground and avoiding any potential legal challenges.
On the other hand, some legal experts believe that being overly cautious might not be needed. They say that the current laws could allow independent expenditure campaigns to use certain campaign materials that are already available to the public. According to this view, if candidate campaigns willingly share content on their websites or social media, independent expenditure campaigns could likely use that content for positive purposes. This is why you see many campaigns go out of their way to make content available on the off chance an IE wants to cut a TV ad or drop direct mail that will help them out. However, even this more relaxed interpretation still stresses the importance of having clear rules, like using content that is truly public and comes directly from official campaign sources.
It’s imperative to note that the FEC’s distinction only applies to federal races. With 50 states, there are hundreds of campaign finance laws to contend with for gubernatorial races down the ballot, and each can have a unique answer to this question. Many simply prohibit the use of candidate-sourced images or videos in an IE, even if the content has been made public.
If you have any questions about this, as either a candidate campaign or an IE, you should be sure to talk to an elections lawyer. Given the intricate legal landscape surrounding independent expenditure campaigns, seeking advice from qualified legal professionals is crucial. Engaging an experienced election lawyer can provide campaigns with a clearer understanding of the permissible boundaries and best practices for utilizing campaign materials. The importance of aligning campaign strategies with legal compliance cannot be overstated, as the consequences of missteps can range from financial penalties to reputational damage.
Amidst these legal ambiguities, certain “solutions” have emerged within the realm of candidate campaign strategies. Some campaigns have adopted the concept of the "red box" on their websites to consolidate all publicly available materials in a single, easily accessible location. This practice offers convenience to independent expenditure campaigns seeking usable content and also helps emphasize the issues and positions that are more important to the campaign.
We’ve seen campaigns set up their “red box” in a variety of ways—sometimes this information will be put in a “Media Center” tab on their website, and sometimes it’s put in a separate “Photos” section. Depending on the website platform, sometimes campaigns will include links directly on the site to download high res photos; other times, campaign pages will link to a Flickr account or a Google Drive folder where the high res photos are hosted.
Of course, publicly available means that a campaign’s photos can’t be accessed only by a supportive IE; opponents and opposing IEs must be able to access them as well. It’s tough for IEs to use a warm, engaging, smiling photo of a candidate on a negative piece of mail. But it’s quite easy to take a photo of a candidate standing behind a podium or microphone, cut out the background, make it black/white and a little grainy, and use it on a contrastive piece. Videos can be even more useful to opponents and their supporters—it’s not difficult to isolate a few seconds where a candidate is making an unfortunate face from often extensive b-roll footage.
And it’s not just photos and videos in these red boxes. We’ve seen some campaigns make the responses to their candidate questionnaires publicly available; we’ve seen other campaigns go as far as putting their completed Tully Message Box on their site, which spells out their messaging and the contrasts they’re comfortable making.
As political landscapes continue to evolve, the opportunities available to independent expenditure campaigns will change and adapt. As campaign strategies develop to make ever-increasing impacts on politics in this complex environment, the guidance of legal experts remains an indispensable asset for avoiding pitfalls and optimizing the impact of both independent expenditure and candidate campaigns.
The most important thing you can do in planning your independent expenditure campaign is to talk to a good attorney who will provide you with the right advice for your program. It’s always going to be a better idea to talk to a lawyer than to pay fines or get the bad press that can result from risking it on your own!
If you're seeking more insights into effective independent expenditure planning or have questions about the evolving campaign landscape, don't hesitate to reach out to The Campaign Workshop. Our team of experienced professionals is dedicated to providing the expertise you need to navigate the intricate world of political campaigns.
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