The American Democracy Legal Fund has filed a complaint with the Federal Election Commission against Sen. Bernie Sanders (I-VT), Bernie 2016 and Susan Jackson its Treasurer, in her official capacity, for violating the Federal Election Campaign Act of 1971.
Sen. Bernie Sanders and his campaign have violated the Act and Commission regulations by failing to include the required disclaimer on a public communication soliciting political contributions. Following the New Hampshire Democratic primary, the Sanders campaign purchased a “sponsored” advertisement on Facebook promoting Senator Sanders’s win and encouraging Facebook users to donate to his campaign. However, this advertisement did not contain any visible political disclaimer disclosing who paid for or authorized the communication.
The complaint is available below and in full with exhibits here. The American Democracy Legal Fund holds candidates for office accountable for possible ethics and/or legal violations. It was established by David Brock and is run by Brad Woodhouse.
FEDERAL ELECTION COMMISSION
American Democracy Legal Fund
455 Massachusetts Avenue, NW
Washington, DC 20001
Senator Bernard Sanders
221 Van Patten Parkway
Burlington, VT 05408
Bernie 2016, and Susan Jackson, Treasurer
PO Box 905,
Burlington, VT 05402
This complaint is filed under 52 U.S.C. § 30109(a)(1) against Senator Bernard Sanders, Bernie 2016, and Susan Jackson, its Treasurer, in her official capacity (collectively, “Respondents”) for violating the Federal Election Campaign Act of 1971, as amended (“the Act”) and Federal Election Commission (the “Commission”) regulations, as described below.
Senator Sanders is a declared candidate for the Democratic Party’s presidential nomination. His principal campaign committee is Bernie 2016. Following the New Hampshire Democratic primary, Bernie 2016 purchased a “sponsored” advertisement on Facebook promoting Senator Sanders’s win and encouraging Facebook users to donate to his campaign. However, this advertisement did not contain any visible political disclaimer disclosing who paid for or authorized the communication. In addition, the ActBlue landing page that a user is directed to if they click the “Donate Now” button on the advertisement also does not contain a political disclaimer noting the source of the advertisement. The ActBlue landing page does, however, include ActBlue’s disclaimer at the bottom of the webpage.
B. LEGAL ARGUMENT
Under federal law, when a political committee makes a disbursement for any type of general public political advertising, or whenever any person makes a disbursement for the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate, the communication must identify who paid for the communication and whether such communication was authorized by a candidate or candidate’s committee. Commission regulations state that all “public communications” by an authorized committee require a disclaimer that “clearly and conspicuously” declares that the communication has been paid for by the authorized committee. Commission regulations also state that Internet communications “placed for a fee on another person’s Web site” are public communications and therefore require a disclaimer.
Commission regulations recognize two relevant exceptions that may apply to Internet communications: (1) exempt “small items” that because of their size cannot conveniently include disclaimer language such as bumper stickers, pens, and buttons; and (2) communications in which the “inclusion of a disclaimer would be impractical,” such as skywriting, water towers, and clothing apparel. The Commission has extended the “small item” exemption to text message communications limited to 160 characters and determined that these communication did not require a disclaimer. Additionally, in 2010 the Commission approved a proposed plan for “text ads” that have limited characters and could not therefore include a disclaimer, but only on the condition that “a full disclaimer would appear on the landing page that appears when a user ‘clicks through’ a text ad.” The Commission has declined to extend the “small items” or the “impracticability” exceptions to graphical Internet advertisements such as a sponsored Facebook advertisement. The Commission did hear a request in 2011 for an advisory opinion on whether Facebook advertisements qualified for these exceptions, but could not reach a majority conclusion. However, all six commissioners would have supported a conclusion that a small graphical Internet advertisement may omit a disclaimer if it links to a website page containing a full disclaimer. Thus, the current status under Commission regulations and guidance is that an Internet advertisement, like a Facebook advertisement, requires a disclaimer unless it is too small or impractical to include the advertisement in which case the “landing page” that the advertisement links to must contain the full disclaimer.
Here, Bernie 2016 has failed to put a proper disclaimer on the Facebook advertisement even though the advertisement is neither too small or impractical for it to have such a disclaimer, and has failed to include its full disclaimer on even the landing page where a user who clicks the advertisement is directed. A member of the public who sees this Facebook advertisement, and who interacts with it, is encouraged to contribute money to Bernie 2016 but is nowhere made aware of who paid for or authorized the originating communication. In addition, the lack of any disclaimer by Bernie 2016 on the advertisement or landing page, and the presence of the ActBlue disclaimer on the landing page, creates confusion as to who paid for the advertisement. Disclaimers are necessary and needed to prevent the public from being misled. Here, the failure by Bernie 2016 to include any disclaimer at all on this communication is a clear violation of 52 U.S.C. 30120(a) and 11 C.F.R. § 110.11.
C. REQUESTED ACTION
As shown the facts indicate that Respondents have violated the Act and Commission regulations by failing to include the required disclaimer on a public communication soliciting political contributions. We respectfully request that the Commission investigate these violations, and that Respondents be enjoined from further violations and be fined the maximum amount permitted by law.