Did a critical newspaper ad about a congressman have to include Maryland's campaign disclosure 'authority line' if it never mentioned the election?

Plain-English summary

An Assistant State's Attorney asked whether a full-page newspaper advertisement criticizing a sitting congressman's positions on defense issues, run by an out-of-state group called the United States Defense Committee, had to carry the "authority line" (identifying the responsible person, treasurer, or campaign manager) that Maryland's Election Code required on "campaign literature." The ad urged readers to write the congressman and to donate to the sponsor, but never mentioned the upcoming election, the congressman's party, or his opponent. The opinion concluded that the authority-line statute could not constitutionally be applied to this ad. Under the First Amendment, the right to speak anonymously about public issues is strongly protected, and the Supreme Court had limited campaign disclosure requirements for independently published material to communications that "expressly advocate the election or defeat of a clearly identified candidate." Because the ad contained no such express advocacy, and courts construe statutes to avoid constitutional problems where possible, the opinion read Maryland's statute narrowly to reach only unambiguously campaign-related, expressly advocating material, and concluded the ad fell outside it.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did a critical newspaper ad about a congressman have to include Maryland's campaign disclosure "authority line" if it never mentioned the election?
According to this 1984 opinion, no. The Attorney General concluded that Article 33, §26-16(a)(7) did not apply to an independently published ad that criticized a congressman's positions but contained no express advocacy of his election or defeat.

Why couldn't Maryland require a disclosure line on any ad that discussed a candidate?
The opinion explained that under Buckley v. Valeo, disclosure requirements aimed at independent political speech must be narrowly limited to communications that "expressly advocate the election or defeat of a clearly identified candidate," because a broader reading would chill protected anonymous political speech under the First Amendment.

What would have made this ad subject to the authority-line requirement?
The opinion suggested the outcome would differ if the ad expressly urged a vote for or against the congressman, mentioned the election or his opponent, or was prepared in coordination with a candidate; the ad in question did none of these things.

Background and statutory framework

Article 33, §26-16(a)(7) of the Maryland Code made it a criminal offense to publish campaign literature "relating to or concerning any candidate" without an authority line identifying who was responsible for it. The opinion measured that requirement against First Amendment case law, principally Buckley v. Valeo, holding that disclosure obligations imposed on speech independent of any candidate must be confined to express advocacy of a candidate's election or defeat, and a Second Circuit decision, Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, applying that same limiting principle to a strikingly similar pamphlet criticizing an incumbent's voting record without referencing the election itself.

Citations

Statutes:

• Article 33, §26-16(a)(7) of the Maryland Code (authority-line requirement for campaign literature)
• Article 33, §26-17(a) of the Maryland Code (related campaign literature provision)
• 2 U.S.C. §441d (federal disclosure requirement for independent election communications)

Cases:

• Talley v. California, 362 U.S. 60 (1960) (right to speak out anonymously on public issues)
• Buckley v. Valeo, 424 U.S. 1, 68 (1976) (disclosure requirements as applied to independent speech must be narrowly limited to express advocacy of a candidate's election or defeat)
• Buckley v. Valeo, 519 F.2d 821, 869-78 (D.C.Cir. 1975) (invalidating a broader disclosure provision reaching nonpartisan public discussion)
• Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2d Cir. 1980) (a pamphlet criticizing an incumbent's voting record without mentioning the election was not subject to disclosure requirements)
• ACLU of New Jersey v. New Jersey Election Law Enforcement Commission, 509 F.Supp. 1123, 1133 (D.N.J. 1981) (cited in support of the narrow-construction rule)
• Moberly v. Herboldsheimer, 276 Md. 211, 217 (1975) (statutes should be construed to avoid constitutional infirmity where possible)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Elections-Fair Election Practices Act-Constitutional Law-First Amendment-"Authority Line" Requirement Inapplicable To Independent Advertisement Containing No Express Advocacy About Election.

October 15, 1984

John L. Dunnigan, Esq.
Assistant State's Attorney for Harford County

You have requested our opinion on the applicability of Article 33, §26-16(a)(7) of the Maryland Code to a particular newspaper advertisement.

For the reasons stated below, we conclude that Article 33, §26-16(a)(7) must be construed as inapplicable to this advertisement. Were the statute construed otherwise, it would be unconstitutional.

I
The "Authority Line" Requirement

Article 33, §26-16(a)(7), a criminal statute, requires an "authority line" on all "campaign literature":

"Every person who publishes or ... causes to be published ... any . .. advertisement... relating to or concerning any candidate ... for public or party office [is guilty of a criminal offense] unless such ... advertisement ... indicates the name of the candidate or committee responsible for the literature and contains, but set apart therefrom, an authority line which shall include the name and address of the person, treasurer, or campaign manager responsible for the publication or distribution of the same".

See also Article 33, §26-17(a).

We have previously described the purpose and effect of Article 33, §26-16(a)(7) as follows:

"Obviously, the reason for the requirement in §26-16(a)(7) that 'campaign literature' contain an authority line is to make each person accountable for the 'written matter' that the person publishes or distributes. Thus, everyone, including voters and opposing candidates, is aware of the author of the written matter. Specifically, if the literature is thought to be untrue or biased, its author is identified and may be challenged." Opinion No. 79-067 at 10 (November 30, 1979) (unpublished).

In other words, though the State is unable to police the content of campaign-related materials, it tries to promote fair elections by at least holding to potential public account those who issue such materials.

II
The Advertisement in Question

The advertisement about which you inquire appeared on a full page of The Aegis newspaper on September 20, 1984. The headline on the advertisement was: "Congressman Long Why Won't You Stand Up and Defend America?". The ad then discussed "four critical national defense issues" soon to be voted on by the Congress and criticized Congressman Long for his supposed positions on these issues. The ad urged citizens to write to the Congressman regarding these issues and to contribute to the ad's sponsor, identified as the United States Defense Committee, located in Fairfax, Virginia. However, the ad did not contain an "authority line" of the kind specified in Article 33, §26-16(a)(7).

Despite its critical content, the advertisement did not expressly urge a vote against Congressman Long in the forthcoming election. Indeed, it made no mention of the election, Congressman Long's party affiliation, or Congressman Long's opponent in the election. There is no indication from the ad itself that it was prepared in coordination with any candidate.

III
Constitutional Principles

The right of individuals or groups to publicly advocate their views about political issues and events is at the very core of First Amendment protection. Indeed, they have a right not only to speak out on these matters but to do so anonymously, if they wish. Talley v. California, 362 U.S. 60 (1960). Thus, the State may not constitutionally require anyone who publishes praise or criticism of an elected official to publish with it an identifying "authority line".

Yet the State also has a substantial interest in preserving the integrity of the electoral process. And, the Supreme Court has observed, "disclosure requirements, as a general matter, directly serve [this] substantial governmental interest[]". Buckley v. Valeo, 424 U.S. 1, 68 (1976). The Supreme Court found no constitutional defect in provisions of the Federal Election Campaign Act that impose extensive disclosure requirements on candidates and political parties with respect to their own electoral activities. Buckley, 424 U.S. at 60-61 and 64-74.

However, a more serious constitutional issue arises when disclosure requirements are imposed on persons who express political views independently of any candidate. If a disclosure provision like Article 33, §26-16(a)(7) is to survive First Amendment scrutiny, it must be "narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced". Buckley, 424 U.S. at 81. That is, it can only be applied to materials that are "unambiguously campaign related". Id.

In distinguishing independent communications that may constitutionally be subject to disclosure requirements from those that may not, the courts have drawn a bright line: Disclosures may constitutionally be required of persons acting independently of the candidates themselves only as to "communications that expresssly advocate the election or defeat of a clearly identified candidate". Buckley v. Valeo, 424 U.S. at 80. Thus, in Buckley, the Supreme Court held that a provision requiring certain disclosures if money were used "for the purpose of... influencing" the nomination or election of candidates for federal office applied only to express advocacy. This limiting construction was necessary "to insure that the reach of [the section] is not impermissibly broad". 424 U.S. at 80. See also Buckley v. Valeo, 519 F.2d 821, 869-78 (D.C.Cir. 1975) (holding unconstitutional another provision of the Federal Election Act that required disclosure as to "completely non-partisan public discussion of issues of public importance" and that could not be given a narrower construction).1

The constitutional necessity for a narrow construction of disclosure statutes, as applied to independent political speech, is well-illustrated by a case involving a publication very similiar to that in questions here. In Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2d Cir. 1980), the FEC sought to compel certain disclosures in a pamphlet published by a citizens' group. The pamphlet, distributed in the fall of an election year, set forth the organization's views on economic and social issues and presented, in a critical way, the voting record of the local incumbent Congressman. However, the leaflet did not refer to the upcoming election, to the Congressman's candidacy, or to the Congressman's electoral opponent. The FEC took the position that, in the context of the election campaign, this pamphlet amounted to a communication "expressly advocating the ... defeat of a clearly identified candidate" and therefore required a disclosure to be made in the body of the publication akin to that required by Article 33, §26-16(a)(7). See 2 U.S.C. §441d (person expending money for such a communication must disclose his or her identity if the communication is not authorized by a candidate).2

The circuit court rejected the FEC's position as "totally meritless". The court held that the statutory language as to express advocacy meant just that, and could, constitutionally, not be given any broader meaning: "This [narrow construction] is consistent with the firmly established principle that the right to speak out at election time is one of the most zealously protected under the Constitution." 616 F.2d at 53. See also ACLU of New Jersey v. New Jersey Election Law Enforcement Commission, 509 F.Supp. 1123, 1133 (D.N.J. 1981).

IV
Application to Article 33, §26-16(a)(7)

In our view, a court construing Article 33, §26-16(a)(7) would likewise hold that a limiting construction is constitutionally required. For the reasons stated above, the statute would be unconstitutional if it were read as requiring anyone who published praise or criticism of an elected official during a campaign to also publish an identifying authority line. Rather, the State may compel that disclosure only when a publication that is made independently of any candidate expressly advocates someone's election or defeat. We believe that the statutory language "relating to or concerning any candidate" would be so construed, under the familiar rule that a statute must if possible be construed to avoid constitutional infirmity. See, e.g., Moberly v. Herboldsheimer, 276 Md. 211, 217 (1975).3

V
Conclusion

The advertisement concerning Congressman Long contained no express advocacy of the election or defeat of any candidate. Therefore, assuming that the ad was prepared and published independently of any candidate, we conclude that Article 33, §26-16(a)(7) does not apply to it.

Stephen H. Sachs, Attorney General

Jack Schwartz
Assistant Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Because of the importance of the issues discussed, it is published here in a slightly revised format.

1 This aspect of the circuit court's decision was not appealed to the Supreme Court. 424 U.S. at 10 n. 7.

2 The statutory language at issue in Central Long Island Tax Reform reflects amendments to the Federal Election Act after Buckley v. Valeo. That is, the Act was amended to embody the limiting construction placed on the original language of the Act by the Supreme Court.

3 The pertinent language of Article 33, §26-16(a)(7), "relating to or concerning any candidate", is sufficiently flexible to permit this narrowing construction.