California Clarifies That Campaign Polling is Not Subject to Political Email Disclosure Requirements

The California Fair Political Practices Commission (FPPC) clarified on September 20, 2018 that email communications from campaign committees for research purposes are not subject to the state’s requirements that campaign emails include a “paid for by Election Campaign X” disclosure.

Thanks to advocacy led by EMC Research (an Insights Association member) and the American Association for Political Consultants (AAPC), the FPPC ruled in our favor.

The problem

The Disclose Act of 2017 required that a “candidate, candidate controlled committee established for an elective office for the controlling candidate, or political party committee shall not send a mass electronic mailing unless the name of the candidate or committee is shown in the electronic mailing preceded by the words “Paid for by” in at least the same size font as a majority of the text in the electronic mailing.” The law defines “mass electronic mailing” as “sending more than two hundred substantially similar pieces of electronic mail within a calendar month.”

This problem was raised in a recent FPPC enforcement decision (In the Matter of Margaret “Peggy” Moore and Moore for Oakland City Council At-Large 2016; FPPC No. 16/19843), which found that standard polls sent out via e-mail are “mass mailings” and must have a campaign advertising disclosure on them.

As stated in the letter from the Kaufman Legal Group, driven by EMC Research and AAPC, and supported by the Insights Association and 25 other organizations and companies:

“neither the Legislature nor” the FPPC “contemplated polling when they adopted the relevant statute and regulations addressing ‘mass mailings,’ because polls have never been considered in that context before. Therefore, the statute is ambiguous as applied to polling communications.”
“a key point for consideration is that a poll is conducted to obtain information, not to communicate with the public.”
“pollsters are not paid to send a mailing on behalf of the campaign; rather, they are being paid to gather information by conducting a poll.”
“the analysis accompanying alternative “A” in the staff report state: ‘Neutral telephonic polls are not required to contain a disclosure statement because the Act requires a disclosure statement in a telephone call only if the call is made for the purpose of supporting a candidate, ballot measure or both.”
the “integrity of the poll, as well as the willingness of people to continue participating in such polls, would be severely impacted by the inclusion of” a written disclaimer at the end of an email poll, as proposed in the staff report option A.

The solution

We supported a request for clarification on the question: “Do the electronic mass mailing campaign advertisement disclosure requirements under Government Code Section 84305 and FPPC Regulation 18435 apply to polls paid for by campaign committees that are sent to potential poll participants via e-mail?”

On September 21, 2018, the FPPC voted 4-0 in favor of our preferred interpretation, adopting option B in the staff report, which concluded: “No. The electronic mass mailing disclosure requirements under Section 84305 and Regulation 18435 do not apply to legitimate polls conducted by e-mail that are not intended to influence voters.”

We sincerely appreciate the FPPC’s unanimous vote, and the leadership shown by EMC Research and AAPC in helping to protect legitimate research of California voters.

Also, EMC Research would appreciate any contributions towards the legal fees. Anyone interested in helping should contact the Insights Association and we will connect you with EMC Research.

NewsGovernment Affairs