Election season in the United States is in full swing and, by some accounts, campaign ad-related spending is projected to exceed $12 billion. While the most spending is expected to take place in the presidential race, various advocacy groups are rolling out multimillion-dollar ad campaigns in battleground states to push agendas on social and policy issues ranging from marijuana legalization to abortion rights.

The opportunity is ripe to capitalize on what’s expected to be the most expensive campaign season on record. But before they take in political advertising dollars, publishers should keep the following best practices in mind to ensure compliance with the nuances of federal and state law:

Establish systems to verify required disclosures in advertisements

Both federal and state laws require publishers to ensure that ads contain certain disclosures and sponsorship identifications. These requirements are varied and not always consistent. At the federal level, for example, digital political advertisements must disclose the sponsor of the ad in a readable format, reasonably contrasted with the ad’s background.

In comparison, California’s requirements are more onerous, requiring the text of the disclosure to be located in a specific place with a hyperlink to the landing page or profile of the sponsor, along with additional character limits applicable under certain circumstances.

Given the highly specific nature of these requirements across the states, publishers must ensure that employees performing prepublication review know what’s required, or else the publisher may be subject to penalties.

Maintain a system for storing records related to political advertisements

Federal and state laws also require that publishers make records relating to political ads available for public inspection and for inspection by applicable governmental authorities. Federal recordkeeping requirements are currently applicable only to broadcast platforms such as radio and TV. At the state level, however, recordkeeping rules apply to digital advertising publishers.

In Maryland, for example, political advertising records must be available for inspection by both the public and the Maryland State Election Board. But different requirements apply depending on who purchased the ad. If purchased by a political committee, for example, records must include the name and contact information of the advertiser, the name of the treasurer of the sponsoring committee and the total amount paid for ad placement.

On the other hand, if the ad is purchased by a person other than a political committee or an advertising network, records must include the name and contact information for the person placing the ad, the individuals exercising direction or control over the activities of the person placing the ad and the total amount paid to purchase the ad. 

Ensure that ad rates are consistent with federal and state law

The rates that may be charged for political advertisements vary by state, and also may vary depending on whether, for example, the advertisement concerns a candidate for federal or state office. At the federal level, rates charged for political advertisements within 45 days of a primary or primary run-off election, or 60 days preceding a general or special election, cannot exceed the lowest unit charge for all ads run during similar time slots.

In contrast, temporal limitations that are characteristic of the federal rules may be irrelevant depending on the state in which the ad is running. In Utah and Wyoming for example, rates charged for political ads cannot exceed the rates charged to any other advertiser irrespective of when the ad is run. While failure to comply with these rules may result in penalties, noncompliance in certain circumstances may also create additional issues. In Colorado, for instance, the difference in rates charged to two candidates in the same race may be classified as a political contribution to the candidate who received the lower rate. 

Don’t publish political ads in states where you cannot comply

Publishers should develop a plan that accounts for the varied scope and idiosyncratic nature of the rules applicable at the federal and state level. At a minimum, an effective plan should include a state-by-state approach for compliance, implementing policies such as geoblocking ads to ensure they do not run in states where they do not comply; developing internal protocols to aid in the verification of disclosures; and implementing procedures for continued monitoring of state and federal rules to identify new or changed requirements.

Understand the different rules that apply from state to state

As demonstrated above, the nature and scope of political advertising rules can vary by state, advertiser and even timing relative to an election. Publishers therefore should work with legal counsel or other experts to both identify applicable rules, determine how to comply with them and understand what consequences may apply in the event of noncompliance.