On the eve of a controversial vote on an abortion rights amendment, anonymous text messages hit the phones of Kansas voters.
The message seemed clear enough, stating, “Women in KS are losing their choice on reproductive rights. Voting YES on the amendment will give women a choice. Vote YES to protect women’s health.”
In fact, the opposite was true, with conservative state voters roundly rejecting the measure.
The Washington Post would later report that the messages were paid for by a political marketing firm that received funding from a PAC run by former congressman Tim Huelskamp, R-Kansas.
Under Kansas law, paid attribution for text messages is required for political messages advocating for or against candidates, but not ballot issues.
With the possibility and likelihood that Iowa voters will see a similar amendment on the ballot in 2024, the issue has raised questions about whether Iowa state laws on attribution statements apply to political text messages , and whether Iowans might see similar messages popping up on their cell phones. , including this fall ahead of the Nov. 8 general election, in which a controversial pro-gun rights amendment will be on the ballot.
Laws do not address
Iowa Board of Campaign Disclosure and Ethics Executive Director Zach Goodrich said he plans to draft an advisory opinion clarifying that state attribution laws apply to some types of text messages politicians
Goodrich said he intends to present the proposal to the six-member board for approval this fall before the November election.
“And if we need to, we talk to lawmakers” about how we can improve the law, he said.
Unlike Kansas, Goodrich noted that Iowa’s code requires attribution statements and disclosures of who paid for messages that specifically advocate candidates and ballot issues. However, Iowa Code Section 68A is unclear as to whether political text messages must have attribution statements.
Iowa law requires attribution statements on “print or electronic general public political advertising” that “expressly advocate” the election or defeat of one or more clearly identified candidates or the approval or defeat of one or more clearly identified voting problems.
The Iowa Board of Campaign Disclosure and Ethics determined in 2000, affirmed in 2006 and issued an updated advisory opinion in 2016 that the law’s “paid for” attribution statements extend to messages of email
This opinion requires attribution statements for “any email that meets all of the following criteria”:
The email message includes express defense; Sent to 100 or more email addresses; iIs submitted by a candidate, a candidate committee, a PAC, a state or county statutory political committee, or an individual who makes an independent expenditure that costs more than $1,000 in total.
Goodrich said he plans to draft an advisory opinion that applies the same criteria to political text messages.
“My interpretation of electronic public political advertising, I think could be applied to text messages, because I don’t see that much of a difference, legally speaking, between mass emails that do political advertising and text messages,” he said.
Posts without an attribution statement would be treated like any other complaint brought before the board, Goodrich said. If found to have violated the law, candidates, their committees, PACs and political parties could be subject to a civil penalty of up to $2,000, he said.
“I hope that whatever mistake or misrepresentation they make, I hope they act in good faith,” Goodrich said. “We all know there are some bad actors out there who want to do things maliciously. But the effect that the attribution statement would have on this is essentially to let us know who was behind it.
“… And, for better or worse, that’s the extent to which our agency has the power to require these actions.”
Ban unlikely
Iowa law does not prohibit sending misleading or false political text messages, such as the one sent to Kansas voters. And crafting such legislation would be difficult, if not impossible, because of the First Amendment implications, said Lynn Hicks, chief of staff for the Iowa attorney general’s office.
“Political speech is broadly protected, and if it’s not related to the sale of goods or services, it’s difficult for consumer law to apply,” Hicks said in an emailed statement. “There appears to be nothing in campaign finance/ethics or election conduct that applies.”
While texting has emerged as an increasingly popular means of spreading political messages, a trend the Associated Press reported accelerated as the coronavirus pandemic forced campaigns to find new ways to engage with voters, Goodrich noted that many political text messages in Iowa already reveal the source of the defense, such as texts sent last month to raise funds for Gov. Kim Reynolds’ campaign.
Before the June 2018 primary election, a campaign sent Iowa voters incorrect polling information. An investigation by the Iowa Secretary of State’s Office determined that the texts were sent by Abby Finkenauer’s campaign for Congress. At the time, Finkenauer was running as a Democrat for the United States House of Representatives in Iowa’s 1st Congressional District.
Finkenauer’s campaign sent a corrective text message to voters and cooperated with the Secretary of State’s Office investigation, which concluded that the inaccurate text messages were the result of a data management error of the campaign and were not malicious in nature.
Iowa Secretary of State Paul Pate issued a statement at the time encouraging candidates to include an attribution statement in all messages sent to voters.
“Including an attribution statement makes it easier for voters to contact a campaign if issues arise,” Pate said in a statement.
His office said his statement remains on his views on the matter.
Goodrich said he was not aware of any similar problems before last June’s primary election, and his office has not received any complaints about false or misleading political text messages since then.
“We hope that the campaigns will go further so that Iowans have the information they need to know who is behind all this advocacy,” he said.
