Media Law Handbook

Advertising


Posted

15. What advertising claims regarding state sales and use taxes are prohibited?
13. How are ads for musical performances and productions regulated?

14. What are the rules for political advertising?

NORTH CAROLINA

MEDIA LAW HANDBOOK

GUIDE TO

POLITICAL ADVERTISING

IN NORTH CAROLINA

A publication of the

North Carolina Press Foundation

 

© North Carolina Press Foundation 2022

 

Advertising Chapter Originally Authored by

Michael Hoefges, J.D., Ph.D.

Associate Professor, University of North Carolina at Chapel Hill, School of Media and Journalism

Revised and Edited by C. Amanda Martin

Senior Lecturing Fellow, Duke Law School, First Amendment Clinic

Revised October 2022

The N.C. General Statutes regulate advertising related to elections for state, county, municipal and district offices in North Carolina and to advertising related to any referendum or other ballot measure that North Carolina voters will decide on a statewide or local level.[1]  For a complete copy of the applicable statutes, see Appendix A.  For a quick reference sheet summarizing key requirements for newspaper, see Appendix B.

The state statutory requirements reviewed in this section do not apply to political advertising related to an election for a federal office.  Two especially informative resources provided by the State of North Carolina are the Election Law Index[2] and the 2012 Campaign Finance Manual.[3]  These may be accessed online and consulted for answers to questions about state regulation of political advertising, but always be sure to obtain the most current version of these or similar publications.

The discussion of federal statutes and rules that apply to federal elections is beyond the scope of this chapter.  More information about federal election laws can be found at the official website of the U.S. Federal Elections Commission (FEC),[4] including a page about current legal developments in federal election law.[5]  These can be accessed online and should be monitored frequently for changes to federal election laws and for relevant court decisions.  Again, be sure to access the most recent information.

In addition to federal campaign finance laws, federal statutes and corresponding Federal Communications Commission (FCC) rules provide requirements for broadcast and cable television licensees with regard to political candidate advertising.  First, under the FCC’s Equal Opportunities Rule, licensed broadcast stations and cable television systems must treat all legally-qualified political candidates running for the same federal, state or local office equally with regard to availability and cost of advertising time during an election cycle.[6]  In addition, under the FCC’s Reasonable Access Rule, legally-qualified political candidates for federal office – but not state or local office – must be given “reasonable access” to licensed broadcast stations and direct broadcast satellite (DBS) systems, or reasonable opportunities to purchase advertising time on them.[7]  A full discussion of these complex federal requirements is beyond the scope of this chapter but remain critical for affected FCC licensees to monitor for compliance.[8] 

State disclosure requirements for media advertisements.  Under state election laws, advertisements that constitute “expenditures,” “independent expenditures,” “electioneering communications” or “contributions” – all as defined in the statutes – are subject to mandatory disclosure requirements.[9]  These requirements vary for print and broadcast media.  However, before reviewing the complex disclosure requirements themselves, it is important to know how the statutes define “expenditure,” “independent expenditure,” “contribution” and “electioneering communication” in the context of political advertising.

An “expenditure” is defined as “any purchase, advance, conveyance, deposit, distribution, transfer of funds, loan, payment, gift, pledge or subscription of money or anything of value whatsoever, whether or not made in an election year, and any contract, agreement, or other obligation to make an expenditure, to support or oppose the nomination, election, or passage of one or more clearly identified candidates, or ballot measure.”[10]  An “independent expenditure” is defined as an expenditure to support or oppose the nomination or election of one or more clearly identified candidates that is not a coordinated expenditure or, if the expenditure is made to support or oppose a ballot measure, does not take place with a referendum committee that supports a ballot measure the expenditure supports, or a referendum committee that opposes the ballot measure the expenditure opposes.[11] 

Under the statutes, determining whether a communication is made “to support or oppose the nomination or election of one or more clearly identified candidates” – often referred to as “express candidate advocacy” – depends on the specific words and phrasing used in the message.[12]  The statutes include the following list of so-called “magic words” as evidence that a communication is express candidate advocacy: 

“vote for”, “reelect”, “support”, “cast your ballot for”, “(name of candidate) for (name of office)”, “(name of candidate) in (year)”, “vote against”, “defeat”, “reject”, “vote pro-(policy position)” or “vote anti-(policy position)” accompanied by a list of candidates clearly labeled “pro-(policy position)” or “anti-(policy position)”, or communications of campaign words or slogans, such as posters, bumper stickers, advertisements, etc., which say “(name of candidate)’s the One”, “(name of candidate) ’98”, “(name of candidate)!”, or the names of two candidates joined by a hyphen or slash.[13]

The statutes exempt any communications that appear in news, commentary or editorial content distributed by a media outlet (i.e., newspaper, magazine or broadcasting station) as long as the outlet is not “owned or controlled by any political party, or political committee.”[14]

The term “electioneering communication” [15] is defined as a “broadcast, cable, or satellite communication, or mass mailing, or telephone bank” that refers to a “clearly identified candidate” and “[i]s aired or transmitted within 60 days of the time set for absentee voting to begin . . . for that office.”  An electioneering communication also must be received by either “50,000 or more individuals in the State for an election for statewide office or 7,500 or more individuals in any other election in the form of broadcast, cable, or satellite communication” or by “20,000 or more households, cumulative per election for statewide office, or 2,500 households, cumulative per election, in any other election if in the form of mass mailing or telephone bank.” Broadcast news stories, commentary and editorials are exempted unless the broadcast facility is owned or controlled by a candidate, or a political party or committee.[16]

North Carolina’s disclosure requirements for political ads incorporate the terms defined above.  A political advertisement in print media or on radio or television that would be an expenditure, an independent expenditure, an electioneering communication or a contribution must include the following disclosure (called a “legend” in the statutes): 

“Paid for by [Name of candidate, candidate campaign committee, political party organization, political action committee, referendum committee, individual, or other sponsor].”[17] 

If the advertisement supports or opposes a ballot measure, the sponsor must state whether it is for or against the measure.[18]   If the advertisement is jointly sponsored, all the sponsors must be named in the required disclosure.[19]

Generally, if an advertisement in print media supports or opposes nomination or election of “one or more clearly identified candidates,” a written disclosure (called a “visual legend” in the statutes) is required stating one of the following as applicable:  “Authorized by [name of candidate], candidate for [name of office]” or “Not authorized by a candidate.”[20]  If a print advertisement identifies a candidate it is opposing and the sponsor has coordinated with that candidate about the advertisement or expenditures for the advertisement,  the sponsor must clearly identify the name of the candidate the advertisement is intended to benefit.[21]

Generally, all state-mandated disclosures in political advertising have to comply with prominence requirements set out in the statutes.[22]  In print media, required disclosures must be “at least five percent (5%) of the height of the printed space of the advertisement” but “in no event…less than 12 points in size.”[23]  However, in newspapers or newspaper inserts, the required disclosure need not comply with the 5 percent requirement so long as the disclosure is “at least 28 points in size.”[24]  In television advertisements, the required disclosure must be “made by visual legend,”[25] and the “text must constitute four percent (4%) of vertical picture height in size.”[26]  In radio advertisements, the required disclosure must be at least two seconds in length and “spoken so that [the] contents may be easily understood.”[27]

            Permissible media charges for political advertisers.  Newspapers, magazines and other advertising media in North Carolina may not charge a candidate, treasurer, political party or individual more than the “comparable rate charged to other persons for advertising of similar frequency and volume” regarding “any advertising purchased for or in support of or in opposition to any candidate, political committee, or political party.”[28]  In addition, advertising media outlets must give these political advertisers the same discounts  as are available to other advertisers under “comparable conditions and circumstances.”[29]  An intentional violation of these requirements is a Class 2 misdemeanor.[30]  However, unlike the statutory disclosure requirements mentioned above, the statutory limitations on media charges for political advertisers do not apply to political advertising that supports or opposes state or local ballot measures.

Recordkeeping requirements.  Under state election statutes, media outlets must request “written authority” from “each candidate, treasurer or individual” for each “expenditure” for political advertising that either supports or opposes a clearly identified candidate running for state or local office in North Carolina, or supports or opposes a state or local ballot measure up for vote in the state.[31]  These recordkeeping requirements also apply to independent expenditures and electioneering communications.[32]  Failure to adhere to these recordkeeping requirements is subject to criminal prosecution as a Class 2 misdemeanor.[33]  In addition, these written authorizations are considered public records under the statutes and must be kept available for public inspection during normal business hours at the office or offices of the media outlet closest to the place or places of publication or broadcast[34] and must be retained “for at least two years counting from the date of the election to which [the authorizations] refer.”[35] For a sample form, see Appendix C to this Chapter.    

APPENDIX A

GENERAL STATUTES

  • 163-278.6.  Definitions.

When used in this Article:

(1)        The term "affiliated party committee" means a General Assembly affiliated party committee as established by G.S. 163-278.8B or Council of State affiliated party committee as established by G.S. 163-278.8C.

(3)        The term "board" means the State Board of Elections with respect to all candidates for State, legislative, and judicial offices and the county board of elections with respect to all candidates for county and municipal offices. The term means the State Board of Elections with respect to all statewide referenda and the county board of elections conducting all local referenda.

(5)        The term "broadcasting station" means any commercial radio or television station or community antenna radio or television station. Special definitions of "radio" and "television" that apply only in Part 1A of this Article are set forth in G.S. 163-278.38Z.

(7)        The term "business entity" means any partnership, joint venture, joint-stock company, company, firm, or any commercial or industrial establishment or enterprise.

(8j)       The term "electioneering communication" means any broadcast, cable, or satellite communication, or mass mailing, or telephone bank that has all the following characteristics:

  1. Refers to a clearly identified candidate for elected office.
  2. In the case of the general election in November of the even-numbered year is aired or transmitted within 30 days of the election for that office.
  3. May be received by either:
  4. 50,000 or more individuals in the State in an election for statewide office or 7,500 or more individuals in any other election if in the form of broadcast, cable, or satellite communication.
  5. 20,000 or more households, cumulative per election, in a statewide election or 2,500 households, cumulative per election, in any other election if in the form of mass mailing or telephone bank.

(9)        The term "candidate" means any individual who, with respect to a public office listed in G.S. 163-278.6(18), has taken positive action for the purpose of bringing about that individual's nomination, retention, or election to public office. Examples of positive action include any of the following:

  1. Filing a notice of candidacy, filing a notice to be retained, or a petition requesting to be a candidate.
  2. Being certified as a nominee of a political party for a vacancy.
  3. Otherwise qualifying as a candidate in a manner authorized by law.
  4. Making a public announcement of a definite intent to run for public office in a particular election.
  5. Receiving funds or making payments or giving the consent for anyone else to receive funds or transfer anything of value for the purpose of bringing about that individual's nomination or election to office. Transferring anything of value includes incurring an obligation to transfer anything of value.

Status as a candidate for the purpose of this Article continues if the individual is receiving contributions to repay loans or cover a deficit or is making expenditures to satisfy obligations from an election already held. Special definitions of "candidate" and "candidate campaign committee" that apply only in Part 2 of this Article are set forth in G.S. 163-278.38Z.

(11)      The term "communications media" or "media" means broadcasting stations, carrier current stations, newspapers, magazines, periodicals, outdoor advertising facilities, billboards, newspaper inserts, and any person or individual whose business is polling public opinion, analyzing or predicting voter behavior or voter preferences. Special definitions of "print media," "radio," and "television" that apply only in Part 1A of this Article are set forth in G.S. 163-278.38Z.

(13)      The terms "contribute" or "contribution" mean any advance, conveyance, deposit, distribution, transfer of funds, loan, payment, gift, pledge or subscription of money or anything of value whatsoever, made to, or in coordination with, a candidate to support or oppose the nomination or election of one or more clearly identified candidates, to a political committee, to a political party, to an affiliated party committee, or to a referendum committee, whether or not made in an election year, and any contract, agreement, or other obligation to make a contribution. An expenditure forgiven by a person or entity to whom it is owed shall be reported as a contribution from that person or entity. These terms include, without limitation, such contributions as labor or personal services, postage, publication of campaign literature or materials, in-kind transfers, loans or use of any supplies, office machinery, vehicles, aircraft, office space, or similar or related services, goods, or personal or real property. These terms also include, without limitation, the proceeds of sale of services, campaign literature and materials, wearing apparel, tickets or admission prices to campaign events such as rallies or dinners, and the proceeds of sale of any campaign-related services or goods. Notwithstanding the foregoing meanings of "contribution," the word shall not be construed to include services provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate, political committee, or referendum committee. The term "contribution" does not include an "independent expenditure." If:

  1. Any individual, person, committee, association, or any other organization or group of individuals, including but not limited to, a political organization (as defined in section 527(e)(1) of the Internal Revenue Code of 1986) makes, or contracts to make, any disbursement for any electioneering communication, as defined in this section; and
  2. That disbursement is coordinated with a candidate, an authorized political committee of that candidate, a State or local political party or committee of that party, an affiliated party committee, or an agent or official of any such candidate, party, or committee

that disbursement or contracting shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate's party and as an expenditure by that candidate or that candidate's party.

(14)      - (19) [Reserved.]

(20)      The term "coordinated expenditure" means an expenditure that is made in concert or cooperation with, or at the request or suggestion of, a candidate, a candidate campaign committee as defined in G.S. 163-278.3(3), the agent of the candidate, or the agent of the candidate campaign committee. An expenditure for the distribution of information relating to a candidate's campaign, positions, or policies, that is obtained through publicly available resources, including a candidate campaign committee, is not a coordinated expenditure if it is not made in concert or cooperation with, or at the request or suggestion of, a candidate, the candidate campaign committee, the agent of the candidate, or the agent of the candidate campaign committee.

(22)      The term "coordination" means in concert or cooperation with, or at the request or suggestion of.

(24)      The term "corporation" means any corporation established under either domestic or foreign charter, and includes a corporate subsidiary and any business entity in which a corporation participates or is a stockholder, a partner or a joint venturer. The term applies regardless of whether the corporation does business in the State of North Carolina.

(26)      The term "costs of collection" means monies spent by the State Board in the collection of the penalties levied under this Article to the extent the costs do not constitute more than fifty percent (50%) of the civil penalty. The costs are presumed to be ten percent (10%) of the civil penalty unless otherwise determined by the State Board of Elections based on the records of expenses incurred by the State Board of Elections for its collection procedures.

(28)      The term "day" means calendar day.

(30)      The term "election" means any general or special election, a first or second primary, a run-off election, or an election to fill a vacancy. The term "election" shall not include any local or statewide referendum.

(32)      The term "election cycle" means the period of time from January 1 after an election for an office through December 31 after the election for the next term of the same office. Where the term is applied in the context of several offices with different terms, "election cycle" means the period from January 1 of an odd-numbered year through December 31 of the next even-numbered year.

(33)      - (40) [Reserved.]

(41)      The term "electioneering communication" means any broadcast, cable, or satellite communication, or mass mailing, or telephone bank that has all the following characteristics:

  1. Refers to a clearly identified candidate for elected office.
  2. In the case of the general election in November of the even-numbered year is aired or transmitted within 60 days of the election for that office.
  3. May be received by either:
  4. 50,000 or more individuals in the State in an election for statewide office or 7,500 or more individuals in any other election if in the form of broadcast, cable, or satellite communication.
  5. 20,000 or more households, cumulative per election, in a statewide election or 2,500 households, cumulative per election, in any other election if in the form of mass mailing or telephone bank.

(43)      The term "electioneering communication" does not include any of the following:

  1. A communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless those facilities are owned or controlled by any political party, affiliated party committee, political committee, or candidate.
  2. A communication that constitutes an expenditure or independent expenditure under this Article.
  3. A communication that constitutes a candidate debate or forum conducted pursuant to rules adopted by the Board or that solely promotes that debate or forum and is made by or on behalf of the person sponsoring the debate or forum.
  4. A communication made while the General Assembly is in session which, incidental to advocacy for or against a specific piece of legislation pending before the General Assembly, urges the audience to communicate with a member or members of the General Assembly concerning that piece of legislation or a solicitation of others as defined in G.S. 163-120C-100(a)(13) properly reported under Chapter 120C of the General Statute.
  5. A communication that meets all of the following criteria:
  6. Does not mention any election, candidacy, political party, opposing candidate, or voting by the general public.
  7. Does not take a position on the candidate's character or qualifications and fitness for office.
  8. Proposes a commercial transaction.
  9. A public opinion poll conducted by a news medium, as defined in G.S. 8-53.11(a)(3), conducted by an organization whose primary purpose is to conduct or publish public opinion polls, or contracted for by a person to be conducted by an organization whose primary purpose is to conduct or publish public opinion polls. This sub-subdivision shall not apply to a push poll. For the purpose of this sub-subdivision, "push poll" shall mean the political campaign technique in which an individual or organization attempts to influence or alter the view of respondents under the guise of conducting a public opinion poll.
  10. A communication made by a news medium, as defined in G.S. 8-53.11(a)(3), if the communication is in print.

(45)      - (48) [Reserved.]

(49)      The term "enforcement costs" means salaries, overhead, and other monies spent by the State Board of Elections in the enforcement of the penalties provisions of this Article, including the costs of investigators, attorneys, travel costs for State Board employees and its attorneys, to the extent the costs do not constitute more than fifty percent (50%) of the sum levied for the enforcement costs and civil late penalty.

(51)      The terms "expend" or "expenditure" mean any purchase, advance, conveyance, deposit, distribution, transfer of funds, loan, payment, gift, pledge or subscription of money or anything of value whatsoever, whether or not made in an election year, and any contract, agreement, or other obligation to make an expenditure, to support or oppose the nomination, election, or passage of one or more clearly identified candidates, or ballot measure. An expenditure forgiven by a person or entity to whom it is owed shall be reported as a contribution from that person or entity. Supporting or opposing the election of clearly identified candidates includes supporting or opposing the candidates of a clearly identified political party. The term "expenditure" also includes any payment or other transfer made by a candidate, political committee, or referendum committee.

(53)      The term "independently expend" or "independent expenditure" means an expenditure to support or oppose the nomination or election of one or more clearly identified candidates that is not a coordinated expenditure. Supporting or opposing the election of clearly identified candidates includes supporting or opposing the candidates of a clearly identified political party. A contribution is not an independent expenditure. As applied to referenda, the term "independent expenditure" applies if consultation or coordination does not take place with a referendum committee that supports a ballot measure the expenditure supports, or a referendum committee that opposes the ballot measure the expenditure opposes.

(55)      The term "individual" means a single individual or more than one individual.

(57)      The term "insurance company" means any person whose business is making or underwriting contracts of insurance, and includes mutual insurance companies, stock insurance companies, and fraternal beneficiary associations.

(59)      The term "labor union" means any union, organization, combination or association of employees or workmen formed for the purposes of securing by united action favorable wages, improved labor conditions, better hours of labor or work-related benefits, or for handling, processing or righting grievances by employees against their employers, or for representing employees collectively or individually in dealings with their employers. The term includes any unions to which Article 10, Chapter 95 applies.

(60)      - (69) [Reserved.]

(70)      The term "mass mailing" means any mailing by United States mail or facsimile to 20,000 or more households, cumulative per election, in a statewide election or 2,500 households, cumulative per election, in any other election.

(72)      The term "person" means any business entity, corporation, insurance company, labor union, or professional association.

(74)      The term "political committee" means a combination of two or more individuals, such as any person, committee, association, organization, or other entity that makes, or accepts anything of value to make, contributions or expenditures and has one or more of the following characteristics:

  1. Is controlled by a candidate;
  2. Is a political party or executive committee of a political party or is controlled by a political party or executive committee of a political party;
  3. Is created by a corporation, business entity, insurance company, labor union, or professional association pursuant to G.S. 163-278.19(b); or
  4. Has the major purpose to support or oppose the nomination or election of one or more clearly identified candidates; [or]
  5. Is an affiliated party committee.

Supporting or opposing the election of clearly identified candidates includes supporting or opposing the candidates of a clearly identified political party.

If the entity qualifies as a "political committee" under sub-subdivision a., b., c., or d. of this subdivision, it continues to be a political committee if it receives contributions or makes expenditures or maintains assets or liabilities. A political committee ceases to exist when it winds up its operations, disposes of its assets, and files its final report.

The term "political committee" includes the campaign of a candidate who serves as his or her own treasurer.

Special definitions of "political action committee" and "candidate campaign committee" that apply only in Part 2 of this Article are set forth in G.S. 163-278.38Z.

(76)      The term "political party" means any political party organized or operating in this State, whether or not that party is recognized under the provisions of G.S. 163-96. A special definition of "political party organization" that applies only in Part 1A of this Article is set forth in G.S. 163-278.38Z. An affiliated party committee is deemed a political party for this Article as set forth in G.S. 163-278.8B and G.S. 163-278.8C.

(78)      The term "professional association" means any trade association, group, organization, association, or collection of persons or individuals formed for the purposes of advancing, representing, improving, furthering or preserving the interests of persons or individuals having a common vocation, profession, calling, occupation, employment, or training.

(80)      The term "public office" means any office filled by election by the people on a statewide, county, municipal or district basis, and this Article shall be applicable to such elective offices whether the election therefor is partisan or nonpartisan.

(82)      The term "referendum" means any question, issue, or act referred to a vote of the people of the entire State by the General Assembly, a unit of local government, or by the people under any applicable local act and includes constitutional amendments and State bond issues. The term "referendum" includes any type of municipal, county, or special district referendum and any initiative or referendum authorized by a municipal charter or local act. A recall election shall not be considered a referendum within the meaning of this Article.

(84)      The term "referendum committee" means a combination of two or more individuals such as a committee, association, organization, or other entity or a combination of two or more business entities, corporations, insurance companies, labor unions, or professional associations such as a committee, association, organization, or other entity the primary purpose of which is to support or oppose the passage of any referendum on the ballot. If the entity qualifies as a "referendum committee" under this subdivision, it continues to be a referendum committee if it receives contributions or makes expenditures or maintains assets or liabilities. A referendum committee ceases to exist when it winds up its operations, disposes of its assets, and files its final report.

(85)      - (92) [Reserved.]

(93)      The term "telephone bank" means telephone calls that are targeted to the relevant electorate, except when those telephone calls are made by volunteer workers, whether or not the design of the telephone bank system, development of calling instructions, or training of volunteers was done by paid professionals.

(95)      The term "treasurer" means an individual appointed by a candidate, political committee, or referendum committee as provided in G.S. 163-278.7 or G.S. 163-278.40A.  (1973, c. 1272, s. 1; 1975, c. 798, ss. 5, 6; 1979, c. 500, s. 1; c. 1073, ss. 1-3, 19, 20; 1981, c. 837, s. 1; 1983, c. 331, s. 6; 1985, c. 352, ss. 1-3; 1997-515, ss. 4(a)-(c), 7(b)-(d); 1999-31, ss. 1(a), (b), 2(a)-(c), 3, 4(a); 1999-424, s. 6(a), (b); 2002-159, s. 55(n); 2003-278, s. 5; 2004-125, s. 3; 2004-127, s. 15; 2004-203, s. 12(b); 2005-430, s. 10; 2006-264, s. 23; 2007-391, s. 3; 2008-150, s. 6(a); 2008-187, s. 33(a); 2009-534, ss. 1, 3(a), (b); 2010-170, s. 1; 2011-31, s. 20; 2013-381, s. 50.1; 2015-66, s. 8(a); 2015-258, s. 3(b), (b1); 2015-264, s. 81(c), (d); 2017-6, s. 3; 2018-144, s. 3.4(m); 2018-146, ss. 3.1(a), (b), 4.6.)

  • 163-278.14A.  Evidence that communications are "to support or oppose the nomination or election of one or more clearly identified candidates."

(a)        The following shall be means of proving that an individual or other entity acted "to support or oppose the nomination or election of one or more clearly identified candidates": presenting evidence of financial sponsorship of communications to the general public that use phrases such as "vote for", "reelect", "support", "cast your ballot for", "(name of candidate) for (name of office)", "(name of candidate) in (year)", "vote against", "defeat", "reject", "vote pro-(policy position)" or "vote anti-(policy position)" accompanied by a list of candidates clearly labeled "pro-(policy position)" or "anti-(policy position)", or communications of campaign words or slogans, such as posters, bumper stickers, advertisements, etc., which say "(name of candidate)'s the One", "(name of candidate) '98", "(name of candidate)!", or the names of two candidates joined by a hyphen or slash.

(b)        Notwithstanding the provisions of subsection (a) of this section, a communication shall not be subject to regulation as a contribution or expenditure under this Article if it:

(1)        Appears in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, or magazine, unless those facilities are owned or controlled by any political party, affiliated party committee, or political committee;

(2)        Is distributed by a corporation solely to its stockholders and employees; or

(3)        Is distributed by any organization, association, or labor union solely to its members or to subscribers or recipients of its regular publications, or is made available to individuals in response to their request, including through the Internet.  (1999-453, s. 3(a); 2008-150, s. 6(b); 2015-258, s. 3(k); 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)

  • 163-278.17.  Statements of media outlets regarding political advertising.

(a)        Each media outlet shall require written authority for each expenditure from each candidate, treasurer or individual making or authorizing an expenditure. A candidate may authorize advertisement paid for by a treasurer appointed by the candidate. All written authorizations of expenditures signed by a candidate, treasurer or individual shall be deemed public records and copies of those written authorizations shall be available for inspection during normal business hours at the office(s) of the media outlet making the publication or broadcast nearest to the place(s) of publication or broadcast.

(b)        Each media outlet shall require written authority for each independent expenditure or electioneering communication from each individual, person, or entity making or authorizing an independent expenditure or electioneering communication. All written authorizations of independent expenditures or electioneering communications shall be deemed public records, and copies of those written authorizations shall be available for inspection during normal business hours at the office(s) of the media outlet making the publication or broadcast nearest to the place(s) of publication or broadcast. The written authorization shall include all of the following:

(1)        The name and address of the individual, person, or entity making the independent expenditure or electioneering communication.

(2)        The information required by G.S. 163-278.39(a), provided however that the provisions of G.S. 163-278.39(a)(7) and (a)(8) shall not apply to radio or television advertising.  (1973, c. 1272, s. 1; 1975, c. 565, s. 3; 1979, c. 500, ss. 5, 6; c. 1073, s. 9; 1985, c. 183, ss. 1, 2; 2010-170, s. 4; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)

  • 163-278.18.  Normal commercial charges for political advertising.

(a)        No media and no supplier of materials or services shall charge or require a candidate, treasurer, political party, affiliated party committee, or individual to pay a charge for advertising, materials, space, or services purchased for or in support of or in opposition to any candidate, political committee, or political party that is higher than the normal charge it requires other customers to pay for comparable advertising, materials, space, or services purchased for other purposes.

(b)        A newspaper, magazine, or other advertising medium shall not charge any candidate, treasurer, political committee, political party, or individual for any advertising for or in support of or in opposition to any candidate, political committee or political party at a rate higher than the comparable rate charged to other persons for advertising of comparable frequency and volume; and every candidate, treasurer, political party or individual, with respect to political advertising, shall be entitled to the same discounts afforded by the advertising medium to other advertisers under comparable conditions and circumstances.  (1973, c. 1272, s. 1; 1977, c. 856; 2015-258, s. 3(n); 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)

  • 163-278.27.  Criminal penalties; duty to report and prosecute.

(a)        Any individual, candidate, political committee, referendum committee, treasurer, person or media who intentionally violates the applicable provisions of G.S. 163-278.7, 163-278.8, 163-278.9, 163-278.10, 163-278.11, 163-278.12, 163-278.13, 163-278.13B, 163-278.14, 163-278.16, 163-278.16B, 163-278.17, 163-278.18, 163-278.19, 163-278.20, 163-278.39, 163-278.40A, 163-278.40B, 163-278.40C, 163-278.40D, 163-278.40E, or 163-278.40J is guilty of a Class 2 misdemeanor. The statute of limitations as stated in G.S. 15-1 shall run from the day the last report is due to be filed with the appropriate board of elections for the election cycle for which the violation occurred.

(b)        A violation of G.S. 163-278.32 by making a certification knowing the information to be untrue is a Class I felony.

(c)        A person or individual who intentionally violates G.S. 163-278.14(a) or G.S. 163-278.19(a) and the unlawful contributions total more than ten thousand dollars ($10,000) per election is guilty of a Class I felony.

(c1)      The Board shall refer apparent violations under this section to the State Ethics Commission. The State Ethics Commission shall investigate and make confidential recommendations to the Board regarding the appropriateness of a criminal referral for those alleged violations, as provided in G.S. 138A-13.5. The Board shall not take action under subsection (b) of this section for 90 days after the referral to the State Ethics Commission.

(d)       Following receipt and consideration of the confidential recommendation from the State Ethics Commission as provided in subsection (a3) of this section, if the Board has knowledge of or has reason to believe there has been a violation of any section of this Article, it shall report that fact, together with accompanying details and a copy of the recommendation issued by the State Ethics Commission, to the following prosecuting authorities:

(1)        In the case of a candidate for nomination or election to the State Senate or State House of Representatives: report to the district attorney of the prosecutorial district in which the candidate for nomination or election resides;

(2)        In the case of a candidate for nomination or election to the office of Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, State Superintendent of Public Instruction, State Attorney General, State Commissioner of Agriculture, State Commissioner of Labor, State Commissioner of Insurance, and all other State elective offices, Justice of the Supreme Court, Judge of the Court of Appeals, judge of a superior court, judge of a district court, and district attorney of the superior court: report to the district attorney of the prosecutorial district in which Wake County is located;

(3)        In the case of an individual other than a candidate, including, without limitation, violations by members of political committees, referendum committees or treasurers: report to the district attorney of the prosecutorial district in which the individual resides; and

(4)        In the case of a person or any group of individuals: report to the district attorney or district attorneys of the prosecutorial district or districts in which any of the officers, directors, agents, employees or members of the person or group reside.

(e)        Upon receipt of such a report from the Board, the appropriate district attorney shall prosecute the individual or persons alleged to have violated a section or sections of this Article.

(f)        As a condition of probation, a sentencing judge may order that the costs incurred by the State Board of Elections in investigating and aiding the prosecution of a case be paid to the State Board of Elections by the defendant on such terms and conditions as set by the judge.  (1973, c. 1272, s. 1; 1979, c. 500, s. 10; c. 1073, ss. 15, 19; 1981, c. 837, s. 4; 1987, c. 565, s. 17; 1993, c. 539, s. 1118; 1994, Ex. Sess., c. 24, s. 14(c); 1999-453, s. 2(c); 2001-419, s. 2; 2006-161, s. 5; 2007-391, s. 1(b); 2008-150, s. 9(b); 2008-187, s. 29; 2010-169, s. 6(a); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 4.11(d).)

  • 163-278.35.  Preservation of records.

All reports, records and accounts required by this Article to be made, kept, filed, or maintained by any individual, media, candidate or treasurer shall be preserved and retained by the individual, media, candidate or treasurer for at least two years counting from the date of the election to which such reports, records and accounts refer.  (1973, c. 1272, s. 1; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)

Part 1A. Disclosure Requirements for Media Advertisements.

  • 163-278.38Z.  Definitions.

As used in this Part:

(1)        "Advertisement" means any message appearing in the print media, on television, or on radio that constitutes a contribution or expenditure under this Article.

(2)        "Candidate" means any individual who, with respect to a public office listed in G.S. 163-278.6(80), has filed a notice of candidacy, notice of retention, or a petition requesting to be a candidate, or has been certified as a nominee of a political party for a vacancy, or has otherwise qualified as a candidate in a manner authorized by law, or has filed a statement of organization under G.S. 163-278.7 and is required to file periodic financial disclosure statements under G.S. 163-278.9.

(3)        "Candidate campaign committee" means any political committee organized by or under the direction of a candidate, except for an affiliated party committee as defined in G.S. 163-278.6(1).

(4)        "Full-screen" means the only picture appearing on the television screen during the oral disclosure statement contains the disclosing person, that the picture occupies all visible space on the television screen, and that the image of the disclosing person occupies at least fifty percent (50%) of the vertical height of the television screen.

(5)        "Political action committee" has the same meaning as "political committee" in G.S. 163-278.6(74), except that "political action committee" does not include any political party, political party organization, or affiliated party committee.

(6)        "Political party organization" means any political party executive committee or any political committee that operates under the direction of a political party executive committee or political party chair, or any affiliated party committee.

(7)        "Print media" means billboards, cards, newspapers, newspaper inserts, magazines, mass mailings, pamphlets, fliers, periodicals, and outdoor advertising facilities.

(8)        "Radio" means any radio broadcast station that is subject to the provisions of 47 U.S.C. §§ 315 and 317.

(9)        "Scan line" means a standard term of measurement used in the electronic media industry calculating a certain area in a television advertisement.

(10)      "Sponsor" means a candidate, candidate committee, political party organization, political action committee, referendum committee, individual, or other entity that purchases an advertisement.

(11)      "Television" means any television broadcast station, cable television system, wireless-cable multipoint distribution system, satellite company, or telephone company transmitting video programming that is subject to the provisions of 47 U.S.C. §§ 315 and 317.

(12)      "Unobscured" means the only printed material that may appear on the television screen is a visual disclosure statement required by law, and nothing is blocking the view of the disclosing person's face.  (1999-453, s. 2(a); 2004-203, s. 12(a); 2010-170, s. 7; 2015-66, s. 8(b); 2015-258, s. 3(q); 2015-264, s. 81(f); 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)

  • 163-278.39.  Basic disclosure requirements for all political advertisements.

(a)        Basic Requirements. - It shall be unlawful for any sponsor to sponsor an advertisement in the print media or on radio or television that constitutes an expenditure, independent expenditure, electioneering communication, or contribution required to be disclosed under this Article unless all the following conditions are met:

(1)        It bears the legend or includes the statement: "Paid for by ____ [Name of candidate, candidate campaign committee, political party organization, political action committee, referendum committee, individual, or other sponsor]." In television advertisements, this disclosure shall be made by visual legend.

(2)        The name used in the labeling required in subdivision (1) of this subsection is the name that appears on the statement of organization as required in G.S. 163-278.7(b)(1) or G.S. 163-278.12(a).

(3)        In a print media advertisement supporting or opposing the nomination or election of one or more clearly identified candidates, the sponsor states whether it is authorized by a candidate. The visual legend in the advertisement shall state either "Authorized by [name of candidate], candidate for [name of office]" or "Not authorized by a candidate." This subdivision does not apply if the sponsor of the advertisement is the candidate the advertisement supports or that candidate's campaign committee.

(4)        In a print media advertisement that identifies a candidate the sponsor is opposing, the sponsor discloses in the advertisement the name of the candidate who is intended to benefit from the advertisement. This subdivision applies only when the sponsor coordinates or consults about the advertisement or the expenditure for it with the candidate who is intended to benefit.

If an advertisement described in this section is jointly sponsored, the disclosure statement shall name all the sponsors.

(b)        Size Requirements. - In a print media advertisement covered by subsection (a) of this section, the height of all disclosure statements required by that subsection shall constitute at least five percent (5%) of the height of the printed space of the advertisement, provided that the type shall in no event be less than 12 points in size. In an advertisement in a newspaper or a newspaper insert, the total height of the disclosure statement need not constitute five percent of the printed space of the advertisement if the type of the disclosure statement is at least 28 points in size. If a single advertisement consists of multiple pages, folds, or faces, the disclosure requirement of this section applies only to one page, fold, or face. In a television advertisement covered by subsection (a) of this section, the visual disclosure legend shall constitute four percent (4%) of vertical picture height in size, and where the television advertisement that appears is paid for by a candidate or candidate campaign committee, the visual disclosure legend shall appear simultaneously with an easily identifiable photograph of the candidate for at least two seconds. In a radio advertisement covered by subsection (a) of this section, the disclosure statement shall last at least two seconds, provided the statement is spoken so that its contents may be easily understood.

(c)        Misrepresentation of Authorization. - Notwithstanding G.S. 163-278.27(a), any candidate, candidate campaign committee, political party organization, political action committee, referendum committee, individual, or other sponsor making an advertisement in the print media or on radio or television bearing any legend required by subsection (a) of this section that misrepresents the sponsorship or authorization of the advertisement is guilty of a Class 1 misdemeanor.  (1999-453, s. 2(a); 2001-317, s. 1; 2001-353, s. 5; 2010-170, s. 8; 2013-381, ss. 44.2, 56.1; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)

APPENDIX B

POLITICAL ADVERTISING

CHEAT SHEET

 

A POLITICAL ADVERTISING CHEAT SHEET

WHAT CAN YOU CHARGE AND HOW MUST IT BE PAID?

You cannot charge more than your customary rate for comparable advertising.  G.S. § 163-278.18(a).  You also cannot favor one candidate over another with your rates.  G.S. § 163-278.18(b).  You can give volume or other discounts, so long as they are equally available to all political ad sponsors.  G.S. § 163-278.18(b). 

You cannot accept cash payments for political ads.  “All expenditures for media expenses shall be made by a verifiable form of payment.”  G.S. § § 163-278.8(e).  Checks and credit cards are fine.

                      WHAT RECORDS DO YOU HAVE TO KEEP?        

You must get written authority for each expenditure from each candidate, treasurer or individual making or authorizing an expenditure, and those records are deemed “public records” by statute.  G.S. § 163-278.17(a).  Thus, anyone can come ask to review those records during regular business hours.  The State Board of Elections’ Campaign Finance Manual has a complex and detailed form for tracking political media expenditures, but the statute’s requirements do not require the specifics of the ad or the schedule.  The only thing required by the statute is this: 

Each media outlet shall require written authority for each expenditure from each candidate, treasurer or individual making or authorizing an expenditure.

For that reason, you may consider keeping details of advertising on a different document and using a streamlined document to comply with the statutory requirements.  A sample of such a form is included here.  The law says that these records are “public records” that must be made available during regular business hours.

You must keep the authorizations for two years from the election to which they relate.  G.S. § 163-278.35.

WHO MUST DISCLOSE?

When it comes to what is in a political ad and how big it is, understand this:  The sponsor of an ad bears the responsibility of complying with the disclosure requirements of the statute, not the newspaper.  Additionally, a newspaper representative should never give legal advice to an advertiser.  This guide is strictly for your background and understanding.

North Carolina does not have any laws requiring disclosures on online ads or social media ads.

The disclosure requirements do not apply to an individual who makes uncoordinated expenditures in a candidate election totaling less than $1,000.  A coordinated expenditure is one that is made in concert or cooperation with, or at the request or suggestion of, a candidate, a candidate campaign committee, the agent of the candidate, or the agent of the candidate campaign committee. G.S. § 163-278.39C(1).

The disclosure requirements do not apply to an individual placing an ad related to a referendum.  G.S. § 163-278.39C(2).

WHAT’S IN THE AD?

The ad must state “Paid for by …” and then name the candidate, candidate campaign committee, political party organization, political action committee, referendum committee, individual, or other sponsor.  G.S. § 163-278.39(a).

If the sponsors are individuals, list all individuals who are paying for the ad.

If the ad clearly supports or opposes a particular candidate, the ad must state whether it is authorized by the candidate:  “Authorized by [name of candidate], candidate for [name of office]” or “Not authorized by a candidate.” This does not apply if the candidate or candidate’s campaign committee places the ad.  G.S. § 163-278.39(a)(3).

If the ad was coordinated with a particular candidate and opposes another particular candidate, the ad must state which candidate is intended to benefit from the ad.  G.S. § 163-278.39(a)(4).

HOW BIG DOES THE AD HAVE TO BE?

Again, this is not the newspaper’s or television station’s obligation to know, but just FYI: 

In print media, the disclosure must be 5% of the height of the ad, but the statute puts parameters on that.  It must always be at least 12 point type, and even if the ad is so big that 5% yields a type size larger than 28 point, it only has to be 28 point.  G.S. § 163-278.39(b).

In a television ad, the visual disclosure must constitute four percent (4%) of vertical picture height in size.  If the sponsor of the ad is a candidate or candidate’s campaign committee, the visual disclosure must appear at the same time with an “easily identifiable photograph” of the candidate for at least two seconds.

In a radio ad, the disclosure statement must last at least two seconds and must be spoken in a manner that can be easily understood.

APPENDIX C

POLITICAL ADVERTISING

RECORDS RETENTION

STATEMENT OF MEDIA OUTLET

RECEIVING POLITICAL ADVERTISING

Required pursuant to § 163-278.17

STATEMENT OF MEDIA OUTLET RECEIVING POLITICAL ADVERTISING

Placement and payment of advertising is authorized by _________________________.

Address (if this is an independent expenditure[36]): 

            _________________________________

            _________________________________

           

Pursuant to statute, payment for this media expense must be made by a verifiable form of payment.  N.C. Gen. Stat. Ann. § 163-278.8(e).

By law, this statement will be maintained for two years from the date of the election referenced in the advertisement, G.S. § 163-278.35, and will be available for inspection during normal business hours.  G.S. § 163-278.17(b).

[1] See N.C. Gen. Stat. § § 163-278.5; N.C. Gen. Stat. § 163-278.38Z(1).

[2] N.C. State Bd. of Elections, Election Law Index, available at https://s3.amazonaws.com/dl.ncsbe.gov/sboe/ElectionLawIndex.pdf  (last updated April 21, 2022).  Be sure to obtain the most current version of this publication.

[3] N.C. State Bd. of Elections, 2022 Campaign Finance Manual, available at https://s3.amazonaws.com/dl.ncsbe.gov/Campaign_Finance/Campaign-Finance-Manual.pdf (revised February 2022).

[4] FEC, http://www.fec.gov (last visited October 9, 2022).

[5] FEC, Recent Developments in the Law, http://www.fec.gov/law/recentdevelopments.shtml (last visited October 9, 2022).

[6] 47 U.S.C. § 315(a), (b).  Corresponding rules have been enacted by the FCC as well.  See 47 C.F.R. §§ 73.1941-41 (for broadcasting stations), 76.205-06 (for cable television systems), §25.701 (for DBS systems).

[7] 47 U.S.C. § 312(a)(7).  A corresponding rule has been enacted by the FCC to implement these requirements.  47 C.F.R. §73.1944.

[8] A list of the federal statutes and rules for candidate appearances and advertising is available at the FCC website.  FCC, FCC Statutes and Rules on Candidate Appearances & Advertising, https://www.fcc.gov/media/policy/statutes-and-rules-candidate-appearances-advertising  (last visited October 9, 2022).

[9] For an easy reference to disclosure requirements, see the State Board of Elections guide to Disclosure Legends.  https://www.ncsbe.gov/campaign-finance/disclosure-legends (last visited October 9, 2022).

[10] N.C. Gen. Stat. § 163-278.6(51).

[11] Id. at (53).  “Coordination” means “in concert or cooperation with, or at the request or suggestion of.”  N.C. Gen. Stat. § 163-278.6(22).

[12] N.C. Gen. Stat. § 163-278.14A.    

[13] Id. at (a).  These provisions previously included a “contextual” test for determining express candidate advocacy when the communication did not utilize any of the “magic words” or equivalent terms.  The contextual test was found unconstitutional in 2008 by the U.S. Court of Appeals, Fourth Circuit, in North Carolina Right to Life, Inc. v. Leake (525 F.3d 274, 283-86 (4th Cir. 2008) (relying on the U.S. Supreme Court decision in Fed. Election Comm’n v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 2666-67, 2669 n.7 (2007)), and was removed from the statutes by the state legislature by amendment effective Aug. 2, 2008.  2008 N.C. Sess. Laws 150.

[14] N.C. Gen. Stat. § 163-278.14A(b)(1).  In addition, corporate communications “distributed . . . solely to a corporation’s stockholders and employees” and labor union communications directed “solely to its members or to subscribers or recipients of its regular publications, or made available to individuals in response to their request, including through the Internet” may not be considered regulated express candidate advocacy under the statutes.  Id. at (b)(2).

[15] N.C. Gen. Stat. § 163-278.6(8j)

[16] N.C. Gen. Stat. § 163-278.14A(b)(1).

[17] N.C. Gen. Stat. § 163-278.39(a)(1).  The name in the legend must be the name appearing on the statement of organization as mandated elsewhere in the statutes.  Id. at (a)(2) (referring to N.C. Gen. Stat. §§ G.S. 163-278.7(b)(1) and G.S. 163-278.12(a)).  Also, generally, the disclosure requirements this part of the statutes do not apply to “an individual who makes uncoordinated independent expenditures aggregating less than [$1,000] in a political campaign” or an individual “who incurs expenses with respect to a referendum.”  N.C. Gen. Stat. § 163-278.39C. 

[18] N.C. Gen. Stat. § 163-278.39(a)(3).  The constitutionality of this provision is suspect, however.  A federal trial court ruled that a similar provision that required the sponsor of a political advertisement to state whether the sponsor was for or against the candidate was unconstitutional and enjoined the state from enforcing the provision.  North Carolina Right to Life, Inc. v. Leake, 108 F.Supp.2d 498, 511-13 (E.D.N.C. 2000).  This court ruling applied to a statutory provision that was subsequently repealed effective Aug. 1, 2001.  2001 N.C. Sess. Laws (repealing N.C. Gen. Stat. § 163-278.39(a)(3), which prohibited any print or broadcast advertisement that constituted a “contribution” or an “expenditure” unless “[t]he sponsor states in the advertisement its position for or against the candidate, provided that this subdivision applies only if the advertisement supports or opposes the nomination or election of one or more clearly identified candidates”).

[19] N.C. Gen. Stat. § 163-278.39(a).

[20] Id. at (a)(3).  This requirement does not apply if the advertisement is sponsored by the candidate who is supported in the advertisement, or that candidate’s committee.  Id.

[21] Id. at (a)(4). 

[22] Id. at (b).

[23] Id.  If one advertisement spans “multiple pages, folds, or faces, the disclosure requirement . . . applies only to one page, fold, or face.”  Id.

[24] Id. 

[25] Id.

[26] Id.

[27] Id.

[28] N.C. Gen. Stat. § 163-278.18(b).  In addition, media and suppliers of “materials and services” may not “charge or require a candidate, treasurer, political party, or individual to pay a charge for advertising, materials, space, or services purchased for or in support of or in opposition to any candidate, political committee, or political party that is higher than the normal charge” for other customers for comparable advertising materials and services.  Id. at (a).

[29] N.C. Gen. Stat. § 163-278.18(b).

[30] N.C. Gen. Stat. § 163-278.27(a).

[31] N.C. Gen. Stat. § 163-278.17(b).  It should be noted here that the statutes prohibit any candidate, political committee or referendum committee from making any expenditures before appointing a treasurer and certifying the treasurer’s name to the N.C. State Board of Elections, and the expenditure must be made through the named treasurer.  N.C. Gen. Stat. § 163-278.16.

[32] N.C. Gen. Stat. § 163-278.17(d). 

[33] N.C. Gen. Stat. § 163-278.27(a).

[34] N.C. Gen. Stat. § 163-278.17(b).

[35] N.C. Gen. Stat. § 163-278.35.

[36] “Independent expenditure” means an expenditure to support or oppose the nomination or election of one or more clearly identified candidates that is not a coordinated expenditure. Supporting or opposing the election of clearly identified candidates includes supporting or opposing the candidates of a clearly identified political party. As applied to referenda, the term “independent expenditure” applies if consultation or coordination does not take place with a referendum committee that supports a ballot measure the expenditure supports, or a referendum committee that opposes the ballot measure the expenditure opposes.  N.C.GS. § 163-278.6(9)(a).

15. What advertising claims regarding state sales and use taxes are prohibited?
13. How are ads for musical performances and productions regulated?

Browse other chapters