On September 22, 2016, just in time for the upcoming general election, the PDC issued a formal Interpretation clarifying that in the absence of coordination with a candidate, copying graphic content from a campaign website and using the content in other political advertising does not constitute a “contribution” for purposes of the election campaign contribution limits set forth under the Public Disclosure Act.
As regular readers of these Campaign Finance eUpdates know, PDC staff have previously taken the position, which is consistent with the language of the statute, RCW 42.17A.005(13)(a)(iii), that even “passive coordination,” meaning duplicating any or all of a candidate’s advertisement without the candidate’s knowledge, constitutes making a contribution to the candidate. In 2014, for example, an enforcement action was brought by the PDC against the Kitsap County Deputy Prosecuting Attorney Guild arising from the fact that the Guild, which spent a total of $5,753 for a series of newspaper and on-line advertisements in the Kitsap Sun in support of Russell Hauge’s candidacy, used content (such as a photo) taken from Mr. Hauge’s publicly available campaign website. H owever, when push came to shove, the Commission itself declined to find a violation. It ruled instead, without explanation, that the Guild’s conduct did not constitute an in-kind contribution to Mr. Hauge’s campaign.
That left the law in a state of confusion, a state that the Commission has now largely clarified. In PDC Interpretation No. 16-01, the PDC now states, in pertinent part:
In the absence of coordination as described in RCW 42.17A.005(13)(a)(ii) and WAC 390-05-210(3), copying graphic content from a campaign website and using the content in other political advertising does not constitute a contribution as described in RCW 42.17A.0015(13)(a)(iii).
The PDC based its conclusion on the fact that unlike in 1995, when the law was written, “[t]oday, candidates are expected to have campaign websites. Generally, websites are easily accessed and copying a photo or other content from a website takes little effort. Sharing links to websites or website content is a routine activity for individuals who access them…. There is no detriment to the public if the Commission were to interpret that copying a photo from a campaign website for use in other advertising is not republication of a portion of political advertising, in the absence of coordination as described in RCW 42.17A.005(13)(a)(iii). The interpretation would also adapt campaign finance laws to current practice and remove the threat to candidates of unknowingly receiving over-limit contributions.” See https://www.pdc.wa.gov/learn/index-of-interpretations-by-subject/republishing-online-political-advertising-and-application-rcw-4217a00513aiii
Technically, the PDC does not have the power to change state law just by issuing a formal Interpretation. Thus, it is conceivable that a political committee putting out an independent expenditure advertisement could get hit with a 45-day Citizen Complaint letter, and potentially then be sued by a citizen, for making an over-limit contribution in this matter. After all, the statute itself defines a contribution as including:
[t]he financing by a person of the dissemination, distribution, or republication, in whole or in part, of broadcast, written, graphic, or other form of political advertising or electioneering communication prepared by a candidate, a political committee, or its authorized agent; ….
However, we think that if such a lawsuit is brought, the courts are very likely to defer to the PDC’s interpretation that the statutory provision at issue, even though it seems unambiguous, was not intended to, and does not apply to, “passive coordination” through the act of taking content from a candidate’s website. We consider the risk of that happening so low that we think that, as a practical matter, political committees may now safely take and repurpose content from a candidate’s website, so long as they do so independently and in no way coordinate with the candidate whose content they are using.