Independent Expenditure, Electioneering Communication, Ballot Question Disclaimers

(1) Scope of 970 CMR 2.20. In accordance with M.G.L. c. 55, § 18G, disclaimers are required on certain independent expenditure, electioneering communication, and ballot question communications and advertisements ("public communications"). 970 CMR 2.20 is issued to provide guidance regarding these requirements. (2) Public Communications Requiring a Statement of Responsibility Disclaimer in Accordance with the First Paragraph of M.G.L. c. 55, § 18G. Persons and entities, including political committees, that make independent expenditures or electioneering communications, are required to include the Statement of Responsibility disclaimer in: (a) Paid Radio Advertising. (b) Paid Television Advertising. (c) Paid Internet Advertising. A Statement of Responsibility Disclaimer is required in Internet advertising supporting or opposing a candidate, including a podcast, in-app advertising, or social media advertising, if the advertising has a market value exceeding $250. (d) Paid Electronic Advertising Sent in Video Format, if the communication has a market value exceeding $250. (3) Public Communications Requiring a Top Contributor Disclaimer in Accordance with the Second Paragraph of M.G.L. c. 55, § 18G. A Top Contributor Disclaimer must be included in a public communication that is an electioneering communication or independent expenditure if the communication is paid for by any individual or entity (including a political committee) that has raised more than $5,000 in the aggregate from any contributor during the 12-month period before the date of the communication. In addition, the disclaimer is required on communications made to influence or affect ballot questions, to disclose contributors providing more than $5,000 during the 12-month period before the date of the communication. Top Contributor Disclaimers are required in: (a) Paid Print Advertising. An advertisement or insert in a newspaper, magazine, or other printed publication in which the advertisement or insert is larger than 15 square inches; (b) Paid Television Advertising; (c) Paid Internet Advertising with a market value exceeding $250; (d) Paid Electronic Advertising Sent in Video Format. A video advertisement of any duration is subject to the disclaimer requirement if the communication has a market value exceeding $250; (e) Direct Mail, including mail soliciting contributions; and (f) Billboards. (4) Identification of Individual or Entity Paying for Communication. In addition to Statement of Responsibility and Top Contributor disclaimers, even if no contributor has given more than $5,000, any independent expenditure, or electioneering communication, or ballot question communication, other than the communications referenced in 970 CMR 2.20(5), must identify the individual or entity that has paid for the communication, if the market value of the communication is greater than $250. (5) Use of Links to View Disclaimers. Disclaimers relating to internet or electronic communications may be provided not in the text of the communication but instead through the use of a button, link or truncated text, which when either tapped, clicked or hovered over, directs the viewer to a separate page that displays the information required by M.G.L. c. 55, § 18G. Determination of Market Value. The determination of market value for purposes of determining if a disclaimer is required may be made based on factors including, but not limited to, the size of the communication, the geographic area in which it is distributed, and the frequency of its publication. (6) Public Communications not Requiring a Disclaimer. The following communications are not subject to the disclosure requirements of M.G.L. c. 55, § 18G: (a) Yard signs; (b) Door hangers, flyers, posters, buttons and bumper stickers; (c) SMS texts; (d) Emails, unless the market value of the email distribution exceeds $250; (e) Internet ads with a market value not greater than $250; (f) In-app ads with a market value not greater than $250; (g) Social media advertisements or posts, including boosted, promoted or sponsored posts with a market value not greater than $250; (h) Podcasts with a market value not greater than $250; (i) On items where a disclaimer could not be conveniently printed (e.g., clothing, pens, bumper stickers, campaign pins, campaign buttons and similar small items); (j) On items that are of minimal value, do not contain a political message, and are used for administrative purposes (e.g., checks and receipts); (k) Telephone messages or electronic ads sent in audio format; and (l) Membership communications. (7) Determination of Which Contributors to List. The "Top Contributors" to be listed in any communication subject to the second paragraph of M.G.L. c. 55, § 18G must include the following persons: (a) The five persons or entities making the largest contributions received for any purpose in excess of $5,000 during the 12-month period before the date of the communication must be listed. Contributions received by the entity for purposes other than the making of the communication are included. The terms "contributors" and "contribution," as used in M.G.L. c. 55, § 18G and 970 CMR 2.20, refer to donors who provide funds to an entity for any purpose. (b) If no person or entity has contributed more than $5,000 to the entity during the 12 months prior to the date of the communication, no top contributors need be listed. If fewer than five persons or entities made contributions of more than $5,000 during the 12 months prior to the date of the communication, only those persons or entities contributing more than $5,000 must be listed. (c) If more than five persons or entities contribute the same amount, only the last five to give that amount must be listed. (For example, if seven persons give $10,000 each, with two giving in February but the other five giving in July, only the five who gave in July need to be listed.) (d) The contributors may be listed in any order, and do not have to be listed in ascending or descending order based upon the amount contributed. (e) Contributions from multiple affiliated organizations are not aggregated. For example, if a union local gives $2,000 and another local, affiliated with the same international union, gives $3,500, the union is not required to be listed, since the local, not the international union, is the contributor. (8) Manner of Disclosure. (a) The required disclaimers must be of a size and contrasting color that will be legible to the average viewer. (b) The requirement to provide the disclaimers under M.G.L. c. 55, § 18G does not affect other disclaimer requirements, including the requirement under M.G.L. c. 56, § 39, for a disclaimer in print advertisements. (c) A PAC may refer to itself as a "PAC" rather than a "political action committee" in the disclaimers. (9) Reference to OCPF Website. All independent expenditure, electioneering communication, or ballot question advertisements or communications transmitted through paid television or internet advertising requiring a top contributor disclaimer, which relate to a candidate who files with OCPF, or a ballot question on the state ballot, must include a written statement directing viewers to the official web address of the Office of Campaign and Political Finance, by stating "for more information regarding contributors, go to www.ocpf.us." This requirement applies even if no "top contributors" must be listed. (10) Reference to Local Election Official. All independent expenditure, electioneering communication, or ballot question advertisements or communications transmitted through paid television or internet advertising requiring a top contributor disclaimer, which relate to a candidate who files with a local election official, or a ballot question on the local ballot, must include a written statement directing viewers to the local election official for more information regarding campaign finance disclosures. This requirement applies even if no "top contributors" must be listed.