We all remember the children’s book series Where’s Waldo, right? If not, the premise is simple: the series challenges its readers to locate a bespectacled character wearing a signature candy cane-striped sweater. The only trick is that Waldo is quite the chameleon. Skilled in the art of camouflage (or perhaps in choosing his environment), Waldo antagonizes the hunter by gallivanting around in a world of similarly clad people and backdrops. And when the reader has filtered through all of the red herrings to finally locate him, she can expect another—often more difficult—search for Waldo on the next page. It instantly became a children’s bestseller, probably for its ability to keep primary schoolers preoccupied while their parents tended to other matters. Well it seems as though freshman Congressman David Schweiker’s campaign committee was particularly fond of the series as well. And perhaps three of the FEC’s six commissioners were especially good at it.
On February 1, 2011 the Commission ended in stalemate on a campaign advertisement dispute that required constituents to possess such a discerning eye. So, despite the findings of the Commission’s Office of General Counsel advising otherwise, the FEC closed the file on the matter. This month the Commissioners who agreed with the General Counsel’s recommendation released a written statement explaining their position.
In August 2010 the FEC received a complaint regarding a mailer advertisement in which David Schweiker’s campaign attacked then-Republican primary challenger Jim Ward. The negative attack ad warns Arizona’s 5th Congressional district that Jim Ward moved from “the San Francisco area just to run for Congress” and that accompanying him were his “San Francisco ideas to solve Arizona’s illegal immigration problem.” The style of the advertisement is neither novel nor illegal; federal campaign laws permit candidates to negatively attack their opponents, a practice that has been used throughout campaign history. But campaign laws also require that communications insert a disclosure to the audience—a “disclaimer . . .clearly stat[ing] that the communication has been paid for by the authorized political committee.” 11 C.F.R. 110.11(b)(1). Whether Schweiker’s attack ad complied with this requirement was the matter at hand in the complaint.
Under the regulations, “[a] disclaimer . . . must be presented in a clear and conspicuous manner, to give the reader [or] observer . . . adequate notice of the identity of the person or political committee that paid for and . . . authorized the communication.” 11 C.F.R. 110.11(c)(1). The letter of the law is equally clear: the so-called “clear and conspicuous” rules require that all printed communications comply with certain visual specifications, promulgated to ensure that neither the text nor the graphics obfuscate the disclaimer and, therefore, the authorizing committee. More specifically, the regulations provide that “twelve-point type size” would satisfy the size component of the “clear and conspicuous” test. 11 C.F.R. 110.11(c)(2)(i). They also mandate that the text be “in a printed box set apart from the other contents of the communication,” with said text maintaining a “reasonable degree of color contrast” from its background. 11 C.F.R. 110.11(c)(2)(ii)-(iii). The regulations further clarify the required color contrast with a safe harbor, noting that the disclaimer’s color scheme is adequate if it is comprised of “black text on a white background” or maintains a “color contrast” at least comparable to that of “the background and the largest text used in the communication.” 11 C.F.R. 110.11(c)(2)(iii).
Schweiker’s attack ad has two major problems. First, it fails to meet the color contrast requirements, as the text and background are not sufficiently distinct. Where the greater part of the communication is dominated by black lettering or a large and curvy red font with white shadowing atop yellow backdrop, the disclaimer is printed in a subtle hue that fades into the image of the sky. The color scheme does not come close to either of the safe harbor standards; the visual contrasts falls short of that surrounding the largest font (i.e. red lettering with white shadowing on yellow and blue background), and it certainly does not entail black text on a white background.
Second, the text is not “contained in a printed box . . . apart from other contents of the communication.” While the disclaimer’s text is not easily discernible from its background, it is under some of the largest text in the communication. And, when the message equates the opposition candidate’s residence and values with the city of San Francisco, it is hard to argue that strategically perpendicular text in a box that blends into the cables of the golden gate bridge is set apart from the communication at all. Surely the image of the emblematic structure is an integral part of the communication. Taken together, the disclaimer is neither clear nor conspicuous, but comprises of fuzzy characters blurred in a blatant attempt to hide the identity of the authorizing committee.
The Commission’s Office of General Counsel recommended that the parties—Schweiker’s campaign committee and the FEC—partake in pre-probable cause conciliation and settle the matter with a low-cost penalty. Half of the commissioners—Chairwoman Cynthia Bauerly, Steven Walther, and Ellen Weintraub—supported this recommendation, and issued a written statement articulating their reasons for supporting the general counsel’s judgment. Nevertheless, an egregious example of a campaign concealing its identity to avoid accountability becomes yet another case of an FEC 3-3 split and, again, results in inaction, leaving federal campaign laws unenforced. There is some hope: given that five of the six commissioners’ terms will have expired in April, maybe the President will finally make some appointments and see to it that there is quorum comprised of members who actually believe in the Commission’s mission. Don’t hold your breath though. In the meantime think about investing in a toddler who is good a spotting Waldo. It may be the only way to learn who is behind the attack ads that you receive.