OPINION NUMBER - 091

ADOPTED - 1986/05/02

SUBJECT - Campaign Practices; whether pens, pencils, and lapel buttons are exempted from the requirement to print a disclaimer on political material under section 49-1474.01 of the Accountability Act.

REQUESTED BY: George Rhodes, candidate for Custer County Attorney

QUESTION: May a candidate order and use pens, pencils, and lapel buttons containing the name and photo of the candidate and the office sought, but not the name of the committee, the committee's treasurer, and the residence address of the treasurer, as required under section 49-1474.01(1) of the Accountability Act?

CONCLUSION

It is the opinion of the Commission that small, three-dimensional items used in political advertising such as pens, pencils, and buttons printed and distributed by the named candidate or committee were not intended to fall under the disclaimer requirements of section 49-1474.01(1) of the Accountability Act, and that a candidate may order and use such items without printing thereon a full disclaimer as is required on items covered under that section. See Analysis.

FACTS

You have indicated that you are running for re-election as Custer County Attorney, and that it is likely that your spending will exceed $1,000, thus requiring you to form a candidate committee. Your campaign plans call for ordering for advertising purposes ballpoint pens, pencils and/or lapel pins one and one half inches or smaller in diameter. Because the space on these items is extremely limited, you plan to have printed only your name, the office sought, and possibly a photograph. You indicate that it would be difficult, if not impossible, to also print the name of your committee, the name of the committee treasurer, and his or her residence address.

ANALYSIS

Section 49-1474.01 of the Nebraska Political Accountability and Disclosure Act provides as follows:

Political material; printed, published, or distributed; name of sponsor required; exceptions; violation; penalty.

(1) No person or committee shall print, publish, reproduce, or distribute in quantity, nor order to be printed, published, reproduced, or distributed by any method any photograph, handbill, pamphlet, advertisement, circular, postcard, placard, or letter, which contains any statement, notice, information, allegation, or other material concerning any candidate, committee, political party, or ballot question, whether in favor of or against such candidate, committee, political party, or ballot question, in connection with any election, without also printing or reproducing thereon legibly the name of the person or committee at whose instance or request such photograph, handbill, pamphlet, advertisement, circular, postcard, placard, or letter is so printed, published, or reproduced. In the case of a committee, the name and residence address of at least the treasurer shall be given.

(2) The provisions of this section shall not apply to windshield stickers, yard signs, bumper stickers, or to official ballot pamphlets, or cards containing only biographical and other factual information relating to a candidate and printed or reproduced at the request of such candidate or his or her candidate committee.

(3) Commercial printers and publishers shall not be subject to the provisions of this section.

(4) Any person who violates the provisions of this section shall be guilty of a Class IV misdemeanor.(emphasis added)

Underscored are those items which are covered by the section which requires that the name of the person or committee who is responsible for printed political material appear on the material. In the case of a committee, the statute also requires that the name and residence address of the committee treasurer be given. It is important to note that all the materials listed in this section are two-dimensional, printed materials which contain a statement, information, an allegation, or similar material about a candidate or ballot question.

In subsection (2) the following printed, basically two-dimensional items are exempted from the disclaimer requirement: windshield stickers; yard signs; bumper stickers; official ballot pamphlets; cards containing only biographical or other factual information relating to a candidate and printed by that candidate or committee.

On its face, subsection (2) appears to exempt from the disclaimer requirements items which, although printed political material, would be less likely than the items covered in subsection (1) to contain substantive statements, information, or allegations concerning candidates or ballot questions. The clear implication is that where substantive statements are made it is important to know their source; whereas the exact origin of simple slogans or other brief messages appearing on bumper stickers, yard signs, and the like is of less concern. This appears to be the plain meaning of section 49-1474.01.

However, for additional insight into the intent behind the statute we look to its legislative history. The language of section 49-1474.01 can be traced back up LB915, which was added to the Nebraska Corrupt Practices Act in 1965 and became sections 32-1131 to 1133 R.R.S., (1968 Reissue). These sections were repealed in 1973, but nearly identical language was added to the Accountability Act in 1980 in LB535. This language comprises section 49-1474.01.

LB915 was originally introduced at the request of then-governor Frank B. Morrison, who commented at the Government Committee hearing on the bill on July 1, 1965: ". . . everyone has to accept the responsibility for anything he says and anything that he does, and one way of doing this is to have the printer's name or the circulator's name on any literature that is sent out concerning candidates." (emphasis added)

Also at the hearing, Douglas County Election Commissioner Jerry Hassett said that the bill was primarily aimed at unsigned attacks and anonymous campaign literature. Indeed, the introducer's Statement of Intent for LB915 provided: "Its purpose is to prevent the distribution of anonymous campaign material by requiring campaign literature to carry the name and . . . address of the person who ordered it printed." (emphasis added)

The Committee Statement of July 22, 1965 provided: "The purpose of LB915 was to prohibit anonymous literature from being distributed in elections." (emphasis added)

During the floor debate on LB915 on July 29, 1965, Senator Carpenter said: ". . . but when a guy shoots at me, I want to know where it is coming from so I can get my whip out and whip him back and that is what this bill attempts to do so everybody is on an equal basis . . ."

Also during floor debate, Senator Pedersen commented that,". . . the goal is to eliminate anonymous slurs on candidates, especially during the closing hours of campaigns when it is difficult to run down an answer."

In view of the above history of LB915, it is clear that the specific mischief the legislature sought to cure in section 49-1474.01 was anonymous campaign literature containing statements about candidates or ballot questions. The remedy chosen by the legislature was to require identification of the sponsor to appear on the material itself. Certainly, the primary concern regarding the political materials listed in Section 49-1474.01(1) has to do with their potential content. On the other hand, the printed articles exempted from disclaimer requirements in subsection (2) may be characterized as those with a very minimal potential content regarding candidates or ballot questions.

Thus, it is the view of the Commission that small printed items used by the named candidate or committee for political advertising with minimal potential content such as pens, pencils, and lapel pins (with or without a photograph of the candidate) are not subject to the disclaimer requirements of section 49-1474.01(1). The Commission believes that this interpretation succeeds in suppressing the mischief the legislature sought to cure and advancing the remedy - the disclaimer requirement - only where it is needed.