THE POLITICS OF ETHICS AND ELECTIONS: CAN NEGATIVE CAMPAIGN ADVERTISING BE REGULATED IN FLORIDA?

CLEVELAND FERGUSON III[*]
Copyright © 1997 Florida State University Law Review

I. INTRODUCTION
II. DEFINING NEGATIVE CAMPAIGN ADVERTISING
A. "Fair" Negative Campaign Advertising
B. "False" Negative Campaign Advertising
C. "Deceptive" Negative Campaign Advertising
III. CONSTITUTIONAL CONSIDERATIONS
A. Content-Based Regulation
B. Content-Neutral Regulation
C. Regulation of Elections
D. States' Rights
E. Constitutional Challenges to Florida's Election Laws
IV. THE ROLE OF NEGATIVE CAMPAIGN ADVERTISING IN FLORIDA POLITICS
A. The Political Landscape
B. History of Regulation Attempts
C. Nonlegislative Solutions
1. The LeRoy Collins Center for Public Policy
2. Citizens for Fair Campaign Practice
3. Dade County Fair Campaign Practices Committee
V. CURRENT REGULATION THROUGH LEGISLATION
A. Other States
B. Florida
1. The Division of Elections
2. The Florida Elections Commission
3. Case Studies: In re Clayton M. Reynolds III and Division of Elections v. Fischer
VI. 1996 FLORIDA ELECTION REFORM PROPOSALS
A. Committee on Ethics and Elections Proposal
B. Committee Substitute for House Bill 633
C. Committee Substitute for House Bill 1005
D. Committee Substitute for House Bill 1151
E. Committee Substitute for House Bill 1907: The Election Campaign Reform Act of 1996
1. Disclaimers
2. Fair Campaign Practices
3. Contribution Limits
4. Surplus Funds—Turnbacks
5. Independent Florida Elections Commission
F. How Politics Stymied Productive Legislation
VII. CONCLUSION

I. INTRODUCTION

Negative campaign advertising has been a staple of American political tradition since John Adams' victory over Thomas Jefferson in the 1796 presidential election.[1] Citizens coolly received the handbills distributed to disparage Jefferson's character.[2] Observers could not deny the effectiveness of the negative advertising that helped catapult Adams into the Presidency.[3] No accusation was too strong—"from drunkenness and gambling to impotence and adultery."[4] Even Abraham Lincoln was referred to in derogatory terms in nineteenth-century campaign literature.[5] More recently, negative advertising has taken the form of anonymous telephone calls made to Floridians by Governor Chiles' reelection campaign, which may have contributed to his victory over Republican challenger Jeb Bush.[6]

Florida's voters became upset as they witnessed another example of why political campaigns are perceived unfavorably. The evidence is stronger now than at any other time in history that voters' disdain for negative campaign advertising decreases their faith in the political process.[7] Furthermore, negative advertising often results in public disenchantment with all candidates.[8]

A recent poll revealed that almost half of voters aged forty-five to sixty-four have no confidence in the political process.[9] Fifty-eight percent of Floridians believe that negative campaigning hinders the political process.[10] Consequently, by using negative advertising, candidates may actually reduce voter turnout among their own supporters.[11] Despite these statistics, politicians continue to use negative campaign tactics because of the perception that such tactics remain the most effective means of increasing a candidate's support while simultaneously reducing support for an opposing candidate.[12]

Negative campaign advertising is often divided into three categories: fair, false, and deceptive.[13] Fair ads are those that represent factual occurrences with the intent of embarrassing an opponent by accentuating the negative attributes of the opponent's character or career.[14] While potentially informative to swing voters,[15] these ads commonly contain abrasive, condescending, and volatile words, phrases, or images.[16] False ads, unlike fair ads, can be challenged through the Florida Division of Elections if they contain untrue statements made with actual malice.[17]

Perhaps no campaign technique eludes regulation more than deceptive negative campaign advertising. Deceptive campaign advertising is misleading and distorts the truth about an opposing candidate.[18] Consequently, the Florida Department of State (DOS) and the Florida Legislature targeted these types of advertisements, as well as other negative campaign tactics, as part of their 1996 elections reform package.[19]

Historically, the Florida Legislature has entertained various proposals to regulate negative campaign tactics, in particular negative campaign advertising.[20] The proposals have ranged from prior notice requirements to a statewide fair campaign practices board authorized to investigate challenged advertisements.[21] The Legislature, however, never adopted these proposals. Even if they had been adopted, they likely would not have passed constitutional muster under the First Amendment.[22]

State regulation of political speech is subject to strict scrutiny.[23] To justify regulating the content of political speech, proscribed statements must be false, must have been made with actual malice, and parties challenging such statements must satisfy a "clear and convincing" evidentiary standard.[24] In addition, the law regulating the speech cannot be overbroad or vague.[25] Finally, the law cannot constitute a prior restraint on the time, place, or manner of speech.[26] The First Amendment offers the broadest protection of free speech during political campaigns;[27] therefore, any laws that regulate negative campaigning are subject to strict scrutiny.[28]

This Comment examines the negative campaign tactics that have been employed by Florida candidates, with particular emphasis on negative campaign advertising. Part II attempts to define negative advertising. Part III discusses the constitutional limitations on regulation of campaign advertising. Part IV examines the role that negative campaign advertising plays in Florida politics and reviews historical attempts to address negative campaign advertising through both legislative and nonlegislative means. Part V evaluates the success of legislation, enacted by Florida and other states, that attempts to regulate negative campaign advertising. Part VI analyzes the attempts of DOS and the Florida Legislature during the 1996 Regular Session to enact legislation aimed at curing the use of negative campaigning.

Part VII concludes that the First Amendment protects those politicians who engage in negative campaign tactics, while narrowly restricting those who truly remain committed to campaign reform. Part VII further concludes that DOS, as the state's chief regulatory agency for elections, needs to apply more pressure to the political leadership to challenge powerful lobbies and to make meaningful campaign reform a legislative priority. Finally, Part VII offers a challenge to Florida citizens to participate in cleaning up negative campaign tactics.

II. DEFINING NEGATIVE CAMPAIGN ADVERTISING

No single definition of negative campaign advertising exists. The most simplistic definition is "a mud-slinging ad."[29] One view is that negative campaign advertising consists of forcefully and persuasively attacking an opponent's strength—and highlighting the weaknesses within—with facts that can be documented.[30] One commentator believes that negative campaign advertising involves an ad that "attacks the other candidate personally, the issues for which the other candidate stands, or the party of the other candidate."[31] Another view believes that it is defining one's opponent with negative information to instill anxiety in the observer,[32] while yet another view suggests that negative campaign advertising is simply a method of contrasting candidates with their opponents via an emotive component.[33] Despite the varying definitions, most campaign analysts agree that negative campaign advertising "degrad[es] perceptions of the rival, to the advantage of the sponsor."[34]

Negative campaign advertising seeks to Sprevent the development of bonds of identification and empathy between the opposing candidate and the viewer by linking the opponent with a threat."[35] Negative advertisements also diminish the voters' ability to assess candidates and their views by oversimplifying issues and painting distorted pictures of a candidate's character.[36] With these general goals achieved, the swing voters' opinions of candidates become malleable and open to influence by campaign strategists.[37]

Some campaigns become so divisive as a result of negative campaign advertising that they engender more hostility to the ad's sponsor than to the candidate being attacked.[38] If all candidates employ negative campaign advertising in an election, voters may become desensitized to the entire process.[39] Some commentators express concern that negative ads highlight negative reactions: "[I]t is not always the most liked candidate, but more the least disliked candidate who wins the election."[40]

Nevertheless, it is widely believed by campaign strategists that an ad can only present all of the reasons why voters should vote for one candidate by presenting the reasons why voters should not vote for the candidate's opponent.[41] As one media consultant succinctly put it: "The most effective negative ads are deadly serious; they work because they make voters mad at your opponent."[42]

Although negative ads may upset many voters and candidates, campaign strategists continue to use them aggressively. Generally, the types of negative campaign advertising used will depend upon the nature of the campaign—the more narrow the margin between the candidates in the opinion polls, the more belittling the advertisements tend to be.[43] "Negativity, alone, isn't the real culprit; dishonesty is. That's where a realistic line between right and wrong must be drawn."[44]

Many campaign strategists agree that a line can be drawn between legitimate attacks on an opponent's record and planned, condescendingly emotive strikes designed to inflame voters.[45] Consistent with this distinction, negative campaign advertising is often divided into three categories: fair, false, and deceptive.[46]

A. "Fair" Negative Campaign Advertising

Some campaign strategists suggest that if an advertisement is true, fair, and relevant, it can be aired in good conscience.[47] Under this approach, advertising that addresses documented statements from the political career of an opposing candidate is "fair," even if negative.[48] One political consultant believes that a "fair" advertisement should not only be accurate, but also should represent opponents fairly and be based upon facts contained in the public record.[49]

Another expert identifies types of ads with three similar characteristics as examples of "fair" negative campaign advertising: ads that (1) contrast written or publicly proclaimed ideas, positions, or attitudes, (2) attack a candidate's lack of experience and qualifications for office, or (3) highlight an opponent's public voting record with appropriate and irrefutable citation.[50]

B. "False" Negative Campaign Advertising

"[T]he right to attack doesn't license lies, in any form."[51] False campaign advertising is prohibited in many states, and defamation suits often arise when such advertising is used.[52] However, because defamation suits usually outlast campaigns, they are generally ineffective in providing an adequate remedy before the election.[53] Furthermore, a candidate trying to recover from the presumed damage inflicted upon his or her polling percentages by false advertising will be hard-pressed to file a lawsuit during a political campaign.[54]

C. "Deceptive" Negative Campaign Advertising

Deceptive campaign advertising distorts the truth to the detriment of the opponent. The deception may go so far as to appear to make the advertisement false. Because it contains an element of truth, however, the advertisement is not technically false.[55]

Once it used to be that if there was one thing that wasn't true in an ad it destroyed the whole credibility of the ad. Press and public reaction would force [a candidate] to pull it off the air. Now [public reaction] ha[s] gone the other way. Innuendo and accusation are built on one accuracy—if one statement is true, almost anything else [a candidate] say[s] in an ad must also be true.[56]
This perspective is not only accurate, it is reflected in constitutional case law, which only prohibits false statements made with actual malice.[57]

III. CONSTITUTIONAL CONSIDERATIONS

As a form of political speech, negative campaign advertising is protected by the First Amendment.[58] The U.S. Supreme Court has stated, however, that political speech is not automatically entitled to constitutional protection.[59] Further, calculated falsehoods do not constitute protected speech under the First Amendment.[60] Nevertheless, misleading or deceptive campaign advertising remains protected under the First Amendment as a part of the "robust and wide open"[61] debate that "may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."[62]

A. Content-Based Regulation

The leading case regarding regulation of the content of political speech is New York Times v. Sullivan.[63]In Sullivan, an elected official sued the New York Times for libel for publishing an advertisement that allegedly represented the official's activities falsely.[64] The Court concluded that "neither factual error, which is inevitable in free debate, nor defamatory content, which injures [a public figure's] reputation, is sufficient to remove the constitutional protection from such statements."[65] The Court thereby fashioned a standard under which a public official may seek redress for a statement in a political advertisement only by proving by clear and convincing evidence[66] "that the statement was made with 'actual malice'—that is, with knowledge that it was false or reckless disregard of whether it was false or [not]."[67]

The Court subsequently elaborated upon the actual malice standard in St. Amant v. Thompson.[6]8 In St. Amant, a public official sued his opponent for making false statements about his actions with "reckless disregard" during a television broadcast.[69] The Court, relying upon Sullivan, held that reckless disregard could not be shown by proof of mere negligence.[70] Rather, the public official must prove that the speaker had strong suspicions regarding the truth of the information: "Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice."[71]

In Vanasco v. Schwartz,[72] the Court affirmed a lower court's expansion of the actual malice requirement to apply to state regulation of political campaign speech.[73]In Vanasco, the New York State Board of Elections had found that a candidate violated the New York Fair Campaign Code[74] by misrepresenting his party endorsement during a campaign.[75] However, the Board had failed to determine whether actual malice existed, and had required a "substantial evidence" rather than a "clear and convincing" standard for the burden of proof.[76] The district court found the Code unconstitutional because it was overbroad, vague, and did not meet the Sullivan test, i.e., it did not require a showing of actual malice by clear and convincing evidence.[77] Further, the district court expressed concern that the New York statute did not provide for immediate judicial review.[78]

Thus, after Vanasco, a state statute attempting to regulate the content of political speech requires a clear and convincing showing of actual malice and must provide for immediate judicial review of any decision by a state agency charged with hearing claims under the statute.

A clear statement of opposition to the Sullivan standard came from Justice Byron White.[79] Justice White argued that Sullivan struck an "improvident balance . . . between the public's interest in being fully informed . . . and the competing interest of those who have been defamed in vindicating their reputations."[80] Justice White also urged the Court to permit a strict liability test through which a public official would be awarded damages if the official could simply show that the statement were false.[81] Such an approach, according to Justice White, would permit a defamed public figure to clear his or her name.[82] Notwithstanding Justice White's urgings, however, the Court has consistently reaffirmed its holding in Sullivan and appears unlikely to reexamine its position in the near future.[83]

B. Content-Neutral Regulation

Some states have employed creative methods in attempting to circumvent the Sullivan requirement for content-based regulation by regulating the time, place, or manner of the speech.[84] These states have found the Supreme Court's standard for the regulation of such content-neutral speech equally stringent: a time, place, or manner restriction must (1) be justified without reference to the content of the speech; (2) be narrowly tailored to serve a substantial government interest; and (3) leave open ample alternative channels for communication of the information.[85]

In Commonwealth v. Wadzinski,[86] the Pennsylvania Supreme Court considered whether a portion of the Pennsylvania Elections Code was unconstitutional because it imposed a sanction upon any candidate who published a political advertisement about an opponent without previously filing a copy of the advertisement with the county board of elections.[87] Because prescribed notice requirements have the effect of chilling speech before it is uttered, the crux of the issue was whether the Pennsylvania notice requirement constituted a prior restraint.[88] Notice requirements in this case effectively forced the candidate to obtain a license to speak from the state.[89] Although the state argued that the notice requirement was a reasonable time, place, and manner restriction, the court held that required disclosure of political advertising and the associated waiting period for publishing the advertisement were unconstitutional because these requirements severely limited a candidate's ability to disseminate information.[90]

C. Regulation of Elections

The U.S. Supreme Court has acknowledged that states have a legitimate interest in regulating the elections of their own officials.[91] This interest, however, often comes into direct conflict with the constitutionally protected free speech rights of candidates.[92] Thus, the Court has required that laws attempting to regulate the speech of political candidates during elections be narrowly tailored: "Because the right to engage in political expression is fundamental to our constitutional system, statutory classifications impinging upon that right must be narrowly tailored to serve a compelling governmental interest."[93]

In Buckley v. Valeo,[94] for example, the Court stated that some regulation of campaign speech may withstand constitutional scrutiny.[95] The Court rejected the argument that disclosure requirements and limitations upon political contributions reduce the quantity of political expression through prior restraint and restrict the freedom of political association.[96] In addition, the Court upheld the federal public financing scheme, which provided presidential candidates public funds in exchange for waiving their constitutional free speech rights to spend unlimited amounts of money in their campaigns.[97]

In McIntyre v. Ohio Elections Commission,[98] the Court addressed the constitutionality of an Ohio statute that provided for a blanket prohibition on all forms of anonymous political publications.[99] The plaintiff contended that the statute impermissibly infringed upon an individual's right to anonymously draft and distribute leaflets, which in this case were distributed in opposition to an imminent referendum on a proposed school tax levy.[100] The Court agreed with the plaintiff, finding that the Ohio statute violated First Amendment free speech guarantees because it was not narrowly tailored to effectuate the state's compelling interest in preventing fraud and libel in the election process.[101]

In a dissenting opinion, Justice Scalia warned that permitting anonymous political publication would result in more negative campaign tactics:

The usefulness of a signing requirement lies not only in promoting observance of the law against campaign falsehoods . . . . It lies also in promoting a civil and dignified level of campaign debate . . . . Observers of the past few national elections have expressed concern about the increase of character assassination—"mudslinging" is the colloquial term—engaged in by political candidates and their supporters to the detriment of the democratic process. Not all of this, in fact not much of it, consists of actionable untruth; most is innuendo, or demeaning characterization, or mere disclosure of items of personal life that have no bearing upon suitability for office. Imagine how much all of this would increase if it could be done anonymously.[102]
D. States' Rights

The U.S. Court of Appeals for the Sixth Circuit allowed the State of Ohio to regulate political speech in Pestrak v. Ohio Elections Commission.[103]In Pestrak, the court partially upheld an Ohio law that prohibited false political speech made with actual malice and empowered the Ohio Elections Commission to hold adjudicatory hearings to enforce violations of the statute.[104] The statute authorized the Commission to enforce violations through four distinct means: cease and desist orders, fines, recommendations to the county prosecutor for criminal prosecution, and publication of Commission findings.[105] The court found that the actual malice requirement in the statute was consistent with Sullivan and thus held that portion of the statute constitutional.[106] However, the court invalidated those sections of the statute that empowered the Commission to issue fines and cease and desist orders because the statute did not provide for immediate judicial review and lacked a "clear and convincing" burden of proof standard.[107] Nevertheless, the court found that the Commission did not violate the First Amendment simply by making and publishing findings on the veracity of certain political statements.[108] The court compared this situation to government speech in other fora, such as when government-sponsored news media make pronouncements on the truthfulness of statements made by public officials.[109] Thus, the Pestrak court recognized the right of the government, through an adjudicatory hearing, to evaluate the veracity of political speech, provided the Sullivan requirements are satisfied.

E. Constitutional Challenges to Florida's Election Laws

Challenges to Florida law based upon McIntyre are being made in the U.S. District Court for the Middle District of Florida[110] and in the Florida Second Circuit Court.[111] Plaintiffs in both cases are challenging the facial constitutionality of sections 106.071 and 106.143(1), Florida Statutes.[112] Both cases involve individuals making or seeking to make independent expenditures.[113] The Eleventh Circuit Court of Appeals has not addressed these issues. Nevertheless, federal district courts within the Eleventh Circuit, and even the U.S. Supreme Court, have held unconstitutional several Florida statutes and local ordinances seeking to curb negative campaign tactics.

In Miami Herald Publishing Co. v. Tornillo,[114] the U.S. Supreme Court considered whether section 104.38, Florida Statutes, which granted a political candidate the right to equal space to reply to a newspaper's editorial criticisms[115] violated the free press guarantee of the First Amendment.[11]6 Citing Sullivan for the principle that "debate on public issues should be uninhibited, robust, and wide-open,"[117] the Court held the statute unconstitutional, stating that "a responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated."[118] The Court implied that any governmental regulation of a newspaper's editorial treatment of public issues and officials would likely violate the Constitution's free press guarantee.[119]

Gore Newspapers Co. v. Shevin,[120] a federal district court case, involved a challenge to a Florida statute enacted to curb last-minute "smear tactics" against candidates.[121] The statute in question prohibited both "new" attacks and the republication of old charges and adverse information raised earlier in a campaign.[122] Relying in part upon Tornillo—and, like the Tornillo Court, noting that a responsible press cannot be legislated—the court held that the statute violated the First Amendment.[123]

The Florida Supreme Court also held unconstitutional a municipal ordinance making it a crime for any person to publish or circulate a charge or attack against a candidate during the last seven days of an election campaign, unless the charge had been personally served upon the candidate at least seven days before the election.[124] The ordinance permitted candidates a meaningful opportunity to respond to last-minute, negative attacks.[125] Citing various free press cases, including Tornillo, the court found that the statute violated the First Amendment's free speech and free press guarantees.[126]

IV. THE ROLE OF NEGATIVE CAMPAIGN ADVERTISING IN FLORIDA POLITICS

A. The Political Landscape

In November 1996, all 120 seats in the Florida House of Representatives were up for election, as well as twenty of the forty seats in the Florida Senate.[127] In the House, Republicans took control for the first time since Reconstruction, winning a two-seat margin.[128] In the Senate, Republicans hold a six-seat margin.[129] "Now that Republicans have caught up, and the parties are competing on equal terms, most of the weakest legislators already have been swept out of office . . . , [a]ll the low-hanging fruit has been cut . . . . It's time for hand-to-hand, trench warfare."[130] Negative campaign advertising is viewed as an ideal weapon for such fierce battles because it enables a campaign committee to divide voters, shape views, and define the opposition in a highly negative light.

Negative campaign advertising draws voters' attention away from campaign issues.[131] It discourages meaningful examination of campaign issues by oversimplifying them through soundbites and catch phrases that ultimately degrade the democratic process.[132] Although it is true that "[d]emocratic theory assumes that voters will evaluate candidates on the basis of the information that is available to them,"[133] if the information is skewed from the initial point of presentation, then voters are unable to synthesize the information objectively. As a result, voters must act based upon their emotions. Unfortunately, negative campaign advertising may force candidates to become preoccupied with defending against their opponents' attacks out of fear that not responding will increase the risk of losing the election.[134]

Negative advertising is popular in Florida because of its success.[135] For example, in 1994, former Representative Ron Glickman[136] was defeated by Faye Culp, a local school board member.[137] Culp got a last-minute boost from a Republican Party brochure, which alleged that "Ron Glickman claims four titles: liberal, lawyer, legislator, liar. It's time to take one away."[138] Glickman lost by twenty votes.[139]

Another vivid example of a negative campaign attack came during the 1994 election, when a Republican named Hugh Brotherton challenged former Representative Vernon Peeples.[140] According to the Democrat's brochure,

Brotherton got into a feud with a neighbor over flooding between their lawns. Instead of going for an agreement, Brotherton turned on the pipes and let the water flow . . . right into his neighbor's yard. And Brotherton didn't quit until his neighbor's lawn was completely flooded. Vote no on Hugh John Brotherton. He's Just Weird.[141]
This ad was untrue. Brotherton was actually sued by the neighbor because he built a berm in his own yard.[142] Brotherton lost the election and is suing for libel.[143]

B. History of Regulation Attempts

The Florida Legislature began considering various forms of campaign advertising regulation as early as the mid-1970s. A 1974 proposal required candidates to pledge that they would conduct a fair campaign.[144] Complaints of unfair campaign advertisements and rebuttals to those complaints would have been heard by a county elections board, which would then have released relevant documents to the media.[145] In 1975, a similar bill was proposed that provided for a mandatory code but removed the provisions for filing complaints with a county elections board.[146] The bill analysis indicated that the complaint provision was removed because the Florida House of Representatives Committee on Elections felt "that public exposure and opinion would be enough of a penalty for violating the oath."[147] In the 1980s, legislators filed several bills prohibiting candidates from making false statements about themselves and providing civil penalties for violating the prohibition.[148]

In 1986, Secretary of State George Firestone included a "Pledge of Fair Campaign Practices" in packets of information sent to candidates by DOS.[149] The pledge was strictly voluntary.[150] DOS included signed pledges as part of the candidates' campaign files.[151] However, there was no enforcement of the pledge.[152] DOS did not officially acknowledge the pledge and consequently could not make statements about candidate adherence.[153]

In 1995, Secretary of State Sandra B. Mortham announced a package of campaign and election law reform proposals that included a fair campaign practices code.[154] The goal of the package was to establish a bipartisan fair campaign practices board to handle complaints of unfair campaign tactics.[155] The board, operating under the auspices of DOS, would have heard complaints statewide.[156] In addition, the package would have required a notice of candidate authorization within the standard disclaimer.[157] This new disclaimer also would have been required on all paid telephone contacts and campaign messages placed on the Internet.[158]

Other proposals included defining a cap on party contributions to candidates and eliminating primaries.[159] Every proposal that required legislative approval failed.[160]

C. Nonlegislative Solutions

1. The LeRoy Collins Center for Public Policy

In October 1991, a group of approximately sixty Florida citizens convened in Tallahassee at the LeRoy Collins Center for Public Policy.[161] The bipartisan gathering consisted of representatives from public and private sector interest groups, governmental institutions, and the media.[162] Their goal was to create a proposal aimed at halting the use of unfair and deceptive negative campaign practices.[163] Among the issues discussed were citizen participation in the electoral process, voluntary actions to increase voter participation, and a voluntary code for fair campaign practices.[164]

The group also recommended steps for the news media and the public to take to clean up elections, including: emphasizing issues rather than a candidate's image; encouraging the use of ad watches by the media; encouraging organizations supporting or opposing candidates and/or issues to maintain consistent standards of fairness; encouraging candidates to endorse all campaign materials and requiring candidates to disclose whether they have endorsed an advertisement; encouraging the media to ensure that candidates receive equitable coverage and expanded access; and ensuring that campaigns, advertisements, and dialogue are based upon facts.[165]

Two fair campaign practice groups have formed in Florida as an outgrowth of the Collins Center for Public Policy gathering: Citizens for Fair Campaign Practices in Pinellas County and the Dade County Fair Campaign Practices Committee.

2. Citizens for Fair Campaign Practice

The Citizens for Fair Campaign Practices formed in 1993 in Pinellas County to implement the Voluntary Code of Fair Campaign Practices.[166] The Citizens for Fair Campaign Practices is open to all registered voters.[167] The review board is composed of officers, directors, and five alternates chosen from the group's general membership.[168] All candidates seeking public office in Pinellas County are asked to sign a fair campaign practices pledge.[169] Although the pledge is voluntary, the board informs the media whether individual candidates agreed to sign the pledge.[170]

Any person can register a complaint with the committee alleging a violation of the pledge.[171] The review board meets to determine whether the conduct complained of constitutes a pledge violation.[172] If the board determines that there has been an unfair campaign practice, a hearing is scheduled and both parties are asked to appear before the board.[173] While the review board has no legal authority to enforce rulings or issue sanctions, it does announce its findings to the news media.[174]

Four candidates were cited with violations of the Voluntary Code of Fair Campaign practices during the 1994 elections.[175] All four candidates lost their respective elections.[176] The Pinellas County Democratic Party supports the Citizens for Fair Campaign Practices; the Pinellas County Republican Party does not.[177] Moreover, the state Republican Party formally banned Republican committees and clubs throughout Florida from endorsing any nonpartisan or bipartisan private group, committee, or organization established for the purpose of monitoring or regulating political campaigns.[178]

3. Dade County Fair Campaign Practices Committee

The board of the Dade County Fair Practices Committee has twenty-five members.[179] Membership is determined by the committee and is by invitation only.[180] Unlike the Citizens for Fair Campaign Practices Committee, the Dade County committee is loosely established and has no formal campaign practices code or formal rules to govern the committee's actions.[181] The committee is nonpartisan and has a diverse ethnic and racial composition.[182]

The committee limits its scope of inquiry to ethnic issues.[183] Any candidate who makes an ethnic appeal during the course of a campaign is condemned by the committee.[184] For example, if a white candidate makes a disparaging remark about an African-American opponent, the committee will condemn that candidate.[185] Likewise, if an African-American candidate makes a race-based appeal to African-American voters, the committee will condemn that candidate as well.[186]

Minority groups have expressed concern that this puts them at an unfair disadvantage and limits the use of a powerful political tool.[187] They also complain that the committee only looks at speech, and does not consider whether certain campaign contributions are solicited by way of Sethnically" unfair practices.[188] Further, many in the minority community distrust the committee and believe that it is actually a tool of the establishment designed to frustrate their candidates.[189]

The committee currently will act upon complaints filed by candidates or upon its own initiative.[190] However, the committee chair stated that the committee will start to act more upon its own initiative.[191] The committee reviews a complaint and publicly announces the results of its review. The committee consistently receives laudable press coverage, particularly in the Miami Herald.[192] Further, a condemnation by the committee is thought to have a significant impact upon a candidate's chances for success.[193] This fact may only heighten the concerns of minority communities about the power of this committee and its potential to discourage minority candidates.

V. CURRENT REGULATION THROUGH LEGISLATION

A. Other States

Many states have enacted statutes regulating the speech or conduct of candidates for election to public office.[194] Twenty states have adopted laws prohibiting certain false statements regarding candidates.[195] Violations are generally misdemeanors; however, the penalties range from civil fines to felony convictions.[196]

Several states have included procedural aspects that make their laws noteworthy. For example, an Ohio statute provides that if a person, committee, or corporation falsely identifies itself in a political publication, then the Ohio Elections Commission may impose a fine and refer the matter to a prosecuting attorney.[197]

Oregon provides that there is "a rebuttable presumption that a candidate knows of and consents to any publication or advertisement prohibited by this section caused by a political committee over which the candidate exercises any direction and control."[198]

Montana law provides that in addition to being subject to a misdemeanor penalty, a successful candidate who is found guilty of making or publishing false statements reflecting upon a candidate's character or morality or misrepresenting the voting record or position on public issues of a candidate may be removed from office.[199]

In a further effort to address campaign advertising that is not necessarily false, several states have adopted or endorsed fair campaign practices codes for candidates.[200] Generally, these codes contain broad principles to be used as a guide in conducting campaigns. The codes contain such ideals as conducting the campaign without the use of personal vilification,[201] character defamation,[202] whispering campaigns, libel, slander, or scurrilous attacks on one's opponent or the opponent's personal or family life,[203] not using campaign material that misrepresents, distorts, or otherwise falsifies the facts,[204] and not making any appeal to prejudice based upon race, sex, creed, or national origin.[205] The codes are voluntary rather than state-enforced.[206]

B. Florida

The Florida Legislature has addressed the issue of campaign advertising in several ways. First, section 104.271(1), Florida Statutes, prohibits candidates from falsely or maliciously accusing an opposing candidate of violating any provision of the election code.[207] A violation of this section is a third-degree felony and disqualifies the candidate from holding office.[208] The Florida Elections Commission (FEC) has no jurisdiction over this section.[209]

Section 104.271(2), Florida Statutes, prohibits a candidate from making, "with actual malice[,] . . . any statement about an opposing candidate which is false."[210] This section provides that an aggrieved candidate may file a complaint with the Division of Elections pursuant to section 106.25, Florida Statutes.[211] The FEC has jurisdiction to hold an expedited hearing and to assess a civil penalty of up to $5,000 against a candidate found in violation of section 106.25.[212]

Section 106.143, Florida Statutes, requires all political advertisements to contain certain information.[213] The sponsor of the advertisement must be identified along with the fact that it is a paid political advertisement.[214] If the advertisement is for a candidate seeking the nomination of a political party, the advertisement must identify that party.[215] Independent candidates must indicate that they are running as Independents.[216]

Further, section 106.143(4), Florida Statutes, regulates the content of political advertising.[217] It prohibits a person who is not an incumbent for the office for which he or she is running from using the word "re-elect."[218] To avoid the implication of incumbency, such advertisements must include the word "for" between the candidate's name and the office for which he or she is running.[219] A person who willfully violates section 106.143 is subject to civil penalties imposed by the FEC.[220]

Finally, section 106.071(1), Florida Statutes, requires every political advertisement paid for by independent expenditures to contain the name and address of the person paying for the advertisement and to carry the following disclaimer: "Paid political advertisement paid for by (name of person or committee paying for the advertisement) independently of any (candidate or committee)."[221] A person who fails to include the disclaimer required by this section is guilty of a first-degree misdemeanor.[222]

1. The Division of Elections

Complaints filed under sections 104.271(2) or 106.143 are received by the Division of Elections, which conducts an investigation to determine if there is probable cause to believe that a violation has occurred.[223] A finding of no probable cause may be appealed by the complainant to the FEC.[224] The Division also can investigate and make a probable cause determination without having received a sworn complaint.[225] In addition, the Division has the duty to conduct random audits and investigations with respect to reports and statements filed under chapter 106, Florida Statutes, and with respect to the alleged failure to file any required reports and statements.[226]

2. The Florida Elections Commission

The seven commissioners on the FEC are appointed by the Governor, approved by three members of the Cabinet, and subject to Senate confirmation.[227] The Chair is designated by the Governor.[228] No more than four commissioners may be of the same political party.[229] Commissioners are appointed to four-year terms and may not serve more than two terms.[230] Commissioners do not receive a salary, but do receive travel and per diem compensation for expenses associated with the performance of their duties.[231]

The FEC was created by statute within DOS.[232] Section 106.24, Florida Statutes, provides that the FEC shall not be subject to control, supervision, or direction by DOS in the performance of its duties.[233] The FEC has no staff of its own; the Division of Elections provides administrative support and services to the FEC.[234] The attorney general's office provides the FEC with an assistant attorney general who acts as general counsel.[235]

The FEC determines violations of chapter 106.[236] Upon finding a violation, the FEC may levy civil penalties of up to $1,000 for each violation of chapter 106 and up to $5,000 for violations of section 104.271(2).[237] The FEC also hears appeals of fines levied for the late filing of campaign treasurer reports.[238] The FEC meets, on average, once every two months.[239] It conducts a hearing, if requested, when probable cause is found.[240] To date, the FEC has been unable to shorten the time between receipt of the complaint and a Division probable cause determination to under six months, by which time the election at issue has usually taken place.[241]

A finding of probable cause by the Division is referred to the FEC, which considers the case and makes its own probable cause determination.[242] If probable cause is found, the respondent is entitled to request and receive a full evidentiary hearing.[243] All complaints, papers, and investigations remain confidential until the Division renders a probable cause determination.[244] If a finding of no probable cause is appealed, the information must remain confidential until the appeal is resolved.[245] If the FEC finds probable cause within thirty days before an election, the findings remain confidential until noon of the day following the election.[246]

The FEC is empowered to issue subpoenas and invoke other necessary processes to compel the attendance of witnesses at the hearing.[247] Following the hearing, the FEC determines whether a violation has occurred and whether to levy a civil penalty.[248] The FEC has the authority to bring civil actions for relief, including actions for temporary or permanent injunctions.[249] Since the enactment of section 104.271(2) in 1985, at least forty-two complaints have been filed alleging false statements with actual malice.[250] The FEC has found violations in two of these cases.[251]

3. Case Studies: In re Clayton M. Reynolds III and Division of Elections v. Fischer

During the 1990 general election, Clayton M. Reynolds III, a candidate for Florida House District 27, stated in advertisements mailed to voters that his opponent, Representative Stan Bainter,[252] attended sporting events paid for by political action committees (PACs).[253] The ad also stated that Representative Bainter supported a committee that could approve a state income tax without the vote of the electorate.[254] The FEC determined that the candidate knew Representative Bainter had not attended any sports activities paid for by PACs.[255] The FEC also determined that Reynolds reviewed the law regarding the Taxation and Budget Reform Commission and knew that the Commission could not approve a state income tax without the approval of the electorate.[256] The FEC fined Reynolds $5,000, suspending $4,000 of the fine if Reynolds paid $1,000 within sixty days of the final order.[257]

The Division achieved its second victory under section 104.271 in 1996.[258] The case involved two candidates for the Lake County School Board in the 1994 general election.[259] Kyleen Fischer accused her opponent of organizing Lake County residents to close down a predominantly African-American high school in Eustis, Florida.[260] The Division found that Fischer participated in drafting the mailed advertisements, knew the advertisements were false, and paid for the ads out of her campaign account.[261] Fischer beat her opponent by 1,170 votes.[262] The Division recommended that she be fined $5,000.[263]

All other cases brought under section 104.271(2) have ended with findings of no probable cause.[264] Both the falsity and actual malice elements make finding a violation under this section extremely difficult. Similarly, although there have been several cases prosecuted under section 106.143, most have sustained findings of no probable cause based upon a requirement of willfulness.[265] According to the Division, most complaints are filed against first-time candidates.[266]

VI. 1996 FLORIDA ELECTION REFORM PROPOSALS

Taking into account the constitutional case law and the renewed interest in election reform, the Florida Legislature recently attempted to cure the defects in the current Florida campaign laws through both specific and omnibus election reform bills.[267]

A. Committee on Ethics and Elections Proposal

Sections 104.271, 106.071, and 106.143, in their present form, lack many elements that the U.S. Supreme Court has determined are essential to the constitutional regulation of political speech.[268] Thus, the House Committee on Ethics & Elections recommended that section 104.271 be amended to include immediate judicial review and a clear and convincing burden of proof standard to comply with the Sullivan test.[269] The Committee also recommended that the provision's fines be extended to any person responsible for the advertisement, rather than just the candidate, by incorporating the doctrine of respondeat superior.[270] The provision would make any person associated with the advertisement on behalf of the candidate vicariously liable for a violation.[271] The Committee further recommended increasing the fine for publishing false statements and making the candidate personally liable for the fine.[272]

In addition, the Committee recommended that sections 106.071 and 106.143 be amended to eliminate the disclaimer requirement on certain political advertisements produced and distributed by individuals or groups.[273] The Committee also believed that if the statutes were amended to comport with McIntyre, the amended statutes would be struck down under article I, section 23 of the Florida Constitution[274] because of a Florida citizen's right to privacy.[275] The Committee further suggested that anonymous political publications could involve violations of campaign finance reporting laws.[276] Candidates and political committees are required to report campaign expenditures.[277] The FEC investigates appropriate allegations to determine whether a candidate or political committee was involved in the dissemination of anonymous publications.[278] If the process were widespread, according to the Committee, it could effectively circumvent any limited anonymity exemption for individuals drafted into the statutes because the FEC would be required to identify the proponent of the publication.[279] The Committee suggested that a solution would be to draft an exemption to the public records law[280] to protect identities obtained in this manner.[281]

B. Committee Substitute for House Bill 633

Committee Substitute for House Bill 633 would have amended sections 104.271, 106.071, and 106.143, Florida Statutes, to meet current constitutional free speech requirements regarding false or anonymous political statements and to promote truthfulness in political advertising and campaigning.[282] The bill would have increased the burden of proof necessary to demonstrate actual malice, provided for an expedited judicial review process, and permitted individuals and groups spending less than $500 annually to distribute anonymous political advertisements.[283]

To encourage a greater degree of ethical behavior in the election process, the bill would have expanded the categories of parties subject to administrative penalties for making false statements about a candidate.[284] Under the proposed law, political parties, political committees, committees of continuous existence, and persons associated with such entities would all have been subject to the penalties.[285] The bill also would have increased the maximum fine that the FEC could impose for violations from $5,000 to $10,000.[286] The bill identified factors that would have been considered in determining the amount of the penalty and would have subjected everyone involved in the violation to the fine.[287] Finally, the bill would have reduced, from a felony to a misdemeanor, the punishment for willfully misrepresenting that an opposing candidate violated the election code.[288]

C. Committee Substitute for House Bill 1005

Senate hearings concerning the 70,000 calls placed to Florida citizens by Governor Chiles' reelection campaign[289] prompted Committee Substitute for House Bill 1005.[290] The bill would have required a telephone caller supporting or opposing any candidate, elected public official, or issue to disclose the identity of each person or organization that paid for any of the costs of the call.[291] The bill also would have required the caller to disclose the name of the candidate and the office sought if the sponsor of the call was affiliated with a candidate.[292] However, calls between individuals who knew each other and for which the caller received no compensation would have been exempted from these disclosure requirements.[293] The bill would have prohibited the caller from stating or implying that he or she represented a person or organization that was either fictitious or had not authorized such representation in writing.[294]

The intent of the bill was to reduce the use of false or fraudulent representation of sponsoring organizations and to better define affiliations between those sponsoring or paying for the telephone solicitation and candidates or their campaigns.[295] Further, requiring disclaimers by sponsors would have provided more information to the public to allow it to assess the credibility of political telephone solicitations.[296]

D. Committee Substitute for House Bill 1151

Committee Substitute for House Bill 1151 was an omnibus election reform bill that incorporated many of Secretary of State Mortham's 1996 legislative proposals.[297] As one of its primary components, the bill adopted the Collins Center's voluntary fair campaign practices pledge and would have implemented the pledge through a statewide Fair Campaign Practices Board.[298] The bill also would have required sponsor identification for political solicitation via telephone or the Internet[299] and would have repealed the second primary election.[300] In addition, the bill provided that "technical assistance" and "voter mobilization" services provided by a party to a candidate be counted toward the $50,000 aggregate contribution limit.[301]

E. Committee Substitute for House Bill 1907: The Election Campaign Reform Act of 1996

Committee Substitute for House Bill 1907, the Election Campaign Reform Act of 1996,[302] was one of the largest election reform proposals in Florida history. The bill would have doubled penalties for false statements from $5,000 to $10,000, and would have expanded the scope of parties subject to penalties.[303] The bill also would have required additional disclaimers on all political advertisements and would have provided for the vicarious liability of candidates and political groups whose agents or employees made false statements about a candidate.[304] The bill would have established the FEC as an independent budget entity within DOS and also would have created a voluntary fair campaign practices pledge to be administered by the FEC.[305] Further, the bill would have limited turnbacks of surplus campaign funds from a candidate to a political party to $10,000 and would have subjected a political party making excess campaign contributions to large civil penalties.[306] Finally, the bill would have allowed political parties to allocate advance expenditures to candidates.[307]

1. Disclaimers

Committee Substitute for House Bill 1907 would have exempted individuals and groups spending less than $500 per year on political campaigns from identifying themselves on written political advertisements, provided the individual or group paid for the advertisement and acted independently of any candidate or political party.[308] Additionally, any political advertisement produced by or on behalf of a candidate, with the exception of those paid for by independent expenditures, would have required the candidate's advance approval.[309] This approval would have been required to appear in the advertisement and the candidate would have been required to provide written authorization to the distribution medium.[310] The bill also would have required a political party to obtain candidate approval for all political advertisements produced on behalf of the candidate.[311]

2. Fair Campaign Practices

Committee Substitute for House Bill 1907 essentially would have codified the voluntary code of fair campaign practices developed by the Collins Center.[312] The bill would have offered candidates the opportunity to sign a fair campaign practices pledge and would have empowered the FEC to investigate and hold expedited hearings on complaints lodged against statewide and legislative candidates.[313] The FEC also would have investigated complaints against any candidate who signed the pledge.[314] The FEC's findings would then have been made public.[315]

3. Contribution Limits

Committee Substitute for House Bill 1907 sought to include costs for telephone solicitations within the $50,000 per candidate contribution limit applicable to political parties.[316] Polling services, research services, and salaries for full-time employees of the political party would have remained outside the contribution limit.[317] These expenses are currently required to be reported by both the candidate and the party.[318] All other in-kind contributions, including those for technical assistance and voter mobilization efforts, also would have remained outside the contribution limit under the bill.[319]

The bill would have further precluded all in-kind contributions by political parties through the mailing of printed material to voters within ten days of an election.[320] This provision might have reduced the last-minute negative political advertisements mailed to voters by the political parties.

The bill would have prohibited state or county executive committees of political parties from contributing to candidates beyond the $50,000 limit[321] and would have subjected the committees to civil penalties of twice the amount of excess contributions.[322] This would have changed existing law, which imposes sanctions against candidates alone for accepting excess contributions.[323]

4. Surplus Funds—Turnbacks

Committee Substitute for House Bill 1907 would have permitted a candidate to endorse, cash, and dispose of refund checks received after all surplus funds from a campaign had been disposed of and the necessary disposition reports had been filed with DOS, provided that the candidate filed an amended report with DOS.[324] The bill also would have limited to $10,000 the amount of surplus funds, or "turnbacks," that a candidate could give to his or her political party.[325] Limiting the amount of funds that could be turned back to a candidate's party might have diminished the public perception that these dollars were buying influence with the party and party leaders.

5. Independent Florida Elections Commission

Committee Substitute for House Bill 1907 would have transformed the FEC into an independent body.[326] Further, the bill would have authorized staffing for the FEC and would have established it as a separate budget entity.[327] In addition, the bill would have reduced the FEC's membership from seven to five, and would have changed the appointment process to include appointees by the President of the Senate and the Speaker of the House.[328] The bill also would have transferred the authority to investigate complaints and determine probable cause regarding campaign finance violations and false or malicious political advertisements from the Division to the FEC.[329]

F. How Politics Stymied Productive Legislation

As the 1996 Regular Session wore on, legislators interested in meaningful election reform feared that the campaign reform bills were in trouble.[330] Secretary of State Mortham had been negotiating with the opponents of her reform package throughout the final week of the Regular Session. The Senate Committee on Executive Business, Ethics and Elections, the House Committee on Ethics and Elections, and Governor Chiles were prepared to see the bills passed. The plan was for Representative Tracy Upchurch[331] to simply move the bill on the floor of the House, obtain House approval, and for Senator Jack Latvala[332] to push it through the Senate after its transmittal there.[333]

On the final day of the Regular Session, Committee Substitute for House Bill 1151 was amended to include a combination of House Bills 101,[334] 235,[335] 633, [336] 1005, [337] 1151, [338] and 1907.[339] Representative Upchurch offered the amendment and it was temporarily deferred.[340] Representative John Thrasher[341] tried to move the bill with the amendment; however, much to the surprise of the bill's sponsors, Committee Substitute for House Bill 1151 was left pending on the floor because two members of the Committee on Ethics and Elections believed that the telephone solicitation provision had been added to the amendment.[342]

Representative Beryl Roberts-Burke[343] informed the House that the provision had been defeated in committee and was audibly angry that it had been reinserted.[344] She expressed concern that each violation of this provision would cost a candidate $1,000.[345] Representative Roberts-Burke also stated that she believed a sixty-page amendment was too long to consider given the late hour.[346]

A second committee member, Representative Alzo Reddick,[347] stated that passing this amendment would be like performing "brain surgery with a machete" and that it was not good public policy to vote on such an amendment at the "midnight hour."[348]

Representative Upchurch explained that he had attempted to speak with all the committee members and that he believed that he had satisfied Representative Roberts-Burke's concern over the telephone solicitation provision.[349] Nevertheless, he acquiesced to the concerns expressed by Representatives Roberts-Burke and Reddick and temporarily deferred the bill.[350] However, the bill was never reconsidered and was effectively killed for the year.[351] Thus, at 10:50 p.m. on the final day of the 1996 regular session, several years of work and a two-year commitment to election reform were stymied because two members of the Committee on Ethics and Elections believed a sixty-page amendment was too long to consider for passage.[352] Countless hours of planning were wasted and likely constitutionally permissive proposals vaporized because of the power of lobbyists and the lack of true legislative commitment to election reform.

VII. CONCLUSION

The issue of negative campaign advertising is complex. Negative campaigning quickly degenerates into a vicious cycle where voters become increasingly desensitized, causing candidates to hire increasingly creative campaign strategists who seek to incite public passions, no matter how negative, to get the public to vote for their candidates.

State legislatures that truly desire to curb negative campaigning must operate within a narrow regulatory environment. Moreover, the U.S. Supreme Court has made it clear that to protect free speech, such regulation must withstand strict scrutiny. Therefore, regulation alone cannot address the serious negative campaign practices that have become commonplace in Florida.

The attack on negative campaigning must be twofold. First, voters must conduct independent research, sponsor local fora to discuss the issues, and support groups such as the Pinellas County Fair Campaign Practices Board. To turn a deaf ear on political campaigns simply because of distasteful advertising would take for granted representative democracy. From the American Revolution through the civil rights movement, thousands of Americans have given their lives to secure the right to choose their representatives.

Second, the media must continue to serve the public's interest in elections. The Florida media successfully exposed both the magnitude and the ridiculousness of the 70,000 "scare calls" made to senior citizens during the last gubernatorial election.

The election reform bills filed during the 1996 Regular Session should have passed. The Legislature simply failed to make reform a top priority. Lobbying efforts to organize campaigns aimed at persuading legislatures tend to work. The House Committee on Ethics and Elections, the Senate Committee on Executive Business, Ethics and Elections, and DOS should have recognized the lobbyists' power and severed the various election proposals from those that were more controversial. Further, the Legislature consists of 160 experts on elections; hence, when "too much" regulation is proposed, these experts consistently kill the bills.

Election reformers need to sever noncontroversial provisions from the political hot potatoes and inch toward progress rather than creating omnibus bills that are headed for defeat. However, the leadership in both chambers must truly commit itself if election reform is to be accomplished through the political process. Reformers must try to pass legislation early in the regular session rather than trying to push it through during the final days, when members are fatigued and are primarily concerned with passing bills that affect their constituencies.

Finally, candidates must be willing to stand up to political consultants instead of blindly deferring to the consultants' judgment. While it might be possible to create an advertising board akin to those of the American Bar Association or the American Medical Association, it is unlikely that the multi-million dollar campaign advertising industry will regulate itself voluntarily. The public must demand less emotionally charged soundbites and more substantive debates on relevant issues. The most promising possibility is to increase the number of fair campaign practices boards around the state and to publish the boards' findings, thus shaming the candidates who break their signed pledges. Candidates will listen when there are votes at stake. Voters must realize that the ability to cast a ballot remains the single most effective way to regulate negative campaign advertising.

APPENDIX


State

Fair Campaign Practices Code?

Laws Prohibiting False Campaign Statements?

Court Challenges?

Alabama

ALA. CODE § 17-22A-2 (Michie 1996)

No

--

Arkansas

No

No

--

Arizona

No

No

--

California

CAL. ELEC. CODE § 20440 (Deering 1995)

CAL. ELEC. CODE § 18351 (Deering 1995) (maximum fine $1,000)

No

Colorado

No

COLO. REV. STAT. § 1-13-109 (1996) (misdemeanor)

No

Connecticut

No (voluntary code in effect '74-'78)

No

--

Delaware

No

No

--

Florida

No

FLA. STAT. § 104.271(1) (1995) (civil penalty)

Yes

Georgia

No

No

--

Hawaii

No

No

--

Idaho

No

No

--

Illinois

10 ILL. COMP. STAT. 5/29B-10 (West 1995)

No

--

Indiana

No

No

--

Iowa

No

No

--

Kansas

No

No

--

Kentucky

No

No

--

Louisiana

No

LA. REV. STAT. ANN. § 1463c(1) (West 1995) (misdemeanor)

State v. Burgess, 543 So. 2d 1332 (La. 1989) (holding unconstitutional prior version of § 1463c(1))

Maine

ME. REV. STAT. ANN. tit. 21-A, § 1101 (West 1995)

No

--

Maryland

No

No

--

Massachusetts

No

MASS. ANN. LAWS ch. 56, § 42 (Lawyer's Co-op 1996)

No

Michigan

No

MICH. COMP. LAWS § 168.944 (WESTLAW through 1996 Act 275) (misdemeanor)

No

Minnesota

No

MINN. STAT. § 211B.06 (1996) (misdemeanor)

State v. Jude, No. C5-96-509, 1996 WL 588693 (Minn. Ct. App. Oct. 15, 1996) (finding § 211B.06 overbroad)

Mississippi

No

MISS. CODE ANN. § 23-15-875 (Lawyer's Co-op 1996)

No

Missouri

No

No

--

Montana

MONT. CODE ANN. § 13-35-301 (1995)

MONT. CODE ANN. § 13-35-234 (1995) (misdemeanor)

No

Nebraska

No

No

--

Nevada

NEV. REV. STAT. ANN. § 294A.290 (Michie 1995)

NEV. REV. STAT. ANN. § 294A.330 (Michie 1995)

No

New Hampshire

No

No

--

New Jersey

No

No

--

New Mexico

No

No

--

New York

N.Y. ELEC. LAW § 3-106 (McKinney 1996)

No

--

North Carolina

No

N.C. GEN. STAT. § 163-274(8) (Michie 1996) (misdemeanor)

No

North Dakota

No

N.D. CENT. CODE § 16.1-10-04 (Michie 1995) (misdemeanor)

No

Ohio

No

OHIO REV. CODE ANN. § 3517.21 (Anderson 1996) (misdemeanor)

McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995); Pestrak v. Ohio Elections Comm'n, 926 F. 2d 573 (6th Cir. 1991)

Oklahoma

No

No

--

Oregon

No

OR. REV. STAT. § 260.532 (1995) (civil damages, loss of office)

No

Pennsylvania

No

No

--

Rhode Island

No

No

--

South Carolina

No

No

--

South Dakota

No

No

--

Tennessee

No

TENN. CODE ANN. § 2-19-142 (1996)

No

Texas

No

No

--

Utah

No

UTAH CODE ANN. § 20A-11-1103 (Michie 1996)

No

Vermont

No

No

--

Virginia

No

No

--

Washington

WASH. ADMIN. CODE § 390-32-030 (1995)

WASH. REV. CODE ANN. § 42.17.530 (Michie 1996)

No

West Virginia

W. VA. CODE § 3-1B-5 (Michie 1996)

W. VA. CODE § 3-8-11(c) (Michie 1996)

No

Wisconsin

No

WIS. STAT. § 12.05 (1995) (misdemeanor)

No

Wyoming

No

No

--

District of Columbia

No

No

--

Puerto Rico

No

No

--