Case law: Extending definition to ‘issue’ would be unconstitutional
I’m not really sure when the word “issue” was left out of a state law but it was and that could become an “issue” in the 2022 general election.
KRS 121.065 on Political Advertising has the following sentence as subsection (2):
(2) Political advertising means any communication intended to support or defeat a candidate for public office. (emphasis added)
So where this could affect you is the upcoming election. Hopefully candidates galore will be using newspapers to get their messages through to the voters and if the ad says “support or defeat” a particular candidate, then you know the disclaimer on “Paid for” is in force.
But there’s also a Constitutional Amendment on the ballot in November and that’s an issue, not a candidate. I’m speaking about the amendment on abortion.
With the law written the way it is — “support or defeat of a candidate for public office” — the amendment would not be required to have the disclaimer.
We get a lot of calls around voting times about “local option elections.” I’m sure a lot of people want to know who’s responsible for running an ad in support of allowing alcoholic sales and probably in the same vein, wanting to know who’s responsible for ads against the issue.
The same is going to be true during the November general election with the public wanting to know who’s behind the effort of supporting abortion or defeating the issue.
One of our general counsels, Rick Adams, went a step further by passing along language in KRS 121.190 (1):
“(1) All newspaper or magazine advertising, posters, circulars, billboards, handbills, sample ballots, and paid-for television or radio announcements which expressly advocate the election or defeat of a clearly identified candidate, slate of candidates, or group of candidates for nomination or election to any public office shall be identified by the words “paid for by” followed by the name and address of the individual or committee which paid for the communication; except that if paid for by a candidate, slate of candidates, or campaign committee, it shall be identified only by the words “paid for by” followed by the name of the candidate, slate of candidates, or campaign committee, whichever is applicable. For television and radio broadcasts, compliance with Federal Communications Commission regulations regarding sponsored programs and broadcasts by candidates for public office shall be considered compliance with this section.” (emphasis added).
And also explained the lack of “issue” not being part of the definition of political advertising. Case law states that extending the “paid for” disclaimers to issue campaigns is unconstitutional. Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997).
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