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On Aug. 1, the eve of a contentious vote on a ballot amendment over abortion rights, anonymous text messages arrived on voters’ phones across Kansas.
The message seemed clear enough, asserting: “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, and voters in the conservative state soundly rejected the measure.
The Washington Post would later report the messages were paid for by a political marketing firm that received funding from a PAC led by former congressman Tim Huelskamp, R-Kansas.
Under Kansas law, paid-for attribution on text messages is required for political messaging 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 could see similar messages popping up on their cellphones, including this fall ahead of the Nov. 8 general election, in which a controversial pro-gun rights amendment will be on the ballot.
Political text messages not expressly addressed in Iowa Code
Iowa Ethics and Campaign Disclosure Board Executive Director Zach Goodrich said he plans to draft an advisory opinion clarifying that state laws on attribution statements apply to some kinds of political text messages.
Goodrich said he intends to present the proposal to the six-member board for its approval sometime this fall ahead of the November election.
“And if we need to, talk to legislators” about ways we can improve the law, he said.
Unlike Kansas, Goodrich noted Iowa Code requires attribution statements and disclosures of who paid for messages expressly advocating for candidates and for ballot issues. However, Iowa Code section 68A is not clear on whether political text messages are required to have attribution statements.
Iowa law requires attribution statements on “printed or electronic general public political advertising” that “expressly advocate” for the election or defeat of one or more clearly identified candidates or the passage or defeat of one or more clearly identified ballot issues.
The Iowa Ethics and Campaign Disclosure Board determined in 2000, affirmed in 2006 and issued an updated advisory opinion in 2016 that the law’s “paid for by” attribution statements extend to email messages.
That opinion requires attribution statements on "any email that meets all of the following criteria":
- The email message includes express advocacy;
- The email is sent to 100 or more email addresses; and
- The email is sent by a candidate, a candidate’s committee, a PAC, a state or county statutory political committee, or a person making an independent expenditure that costs more than $1,000 in the aggregate.
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 believe that could apply to text messages, because I don’t see that much of a difference, legally speaking, between mass emails doing the political advertising and text messages,” he said.
Messages 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 would hope, whatever mistake or misleading statement they make, hopefully, they are acting in good faith,“ Goodrich said. ”But, 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 that is, essentially, letting us know who was behind it.
“ … And, for better or worse, that is the extent to which our agency has the power to require those actions.”
Banning misleading political text messages unlikely
Iowa law does not prohibit sending misleading or false political text messages such as what was sent to Kansas voters. And crafting such legislation would be difficult, if not impossible, due to First Amendment implications, said Lynn Hicks, chief of staff for the Iowa Attorney General’s Office.
"Political speech is broadly protected, and if there is nothing related to the sale of merchandise or services, it is hard for consumer law to apply,“ Hicks said in an emailed statement. ”There does not appear to be anything in campaign finance/ethics or election conduct that applies.“
While text messages have emerged as an increasingly popular means of spreading political messaging — a trend the Associated Press reported accelerated when the coronavirus pandemic forced campaigns to find new ways to engage with voters — Goodrich noted many Iowa political texts messages already disclose the source of the advocacy, like texts sent last month raising funds for Gov. Kim Reynolds' campaign.
Ahead of the June primary election in 2018, a campaign texted Iowa voters the wrong polling information. An investigation by the Iowa Secretary of State’s Office determined the texts were sent by the Abby Finkenauer for Congress campaign. Finkenauer was then running as a Democratic candidate to the U.S. 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 Office’s investigation, which concluded that the inaccurate text messages were the result of a data management error by 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.
“The inclusion of 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 still stands regarding his views on the issue.
Goodrich said he was not aware of any similar issues ahead of primary elections this past June, and his office had not received any complaints about false or misleading political text messaging since.
“We hope campaigns will go above and beyond so Iowans have the information that they need to know who is behind all of this advocacy,” he said.
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