Lieutenant Governor Winsome Sears may have violated a directive from the Defense Department with a fundraising text she sent over the weekend.
The text included an image of Sears in her military uniform, which requires a disclaimer stating that it is not an endorsement of her campaign by the military.
The required disclaimer is on the fundraising website she linked to at the bottom of the text message.
The Sears campaign said federal agencies allow disclaimers on a separate fundraising page, but the DOD’s specific guidance does not mention that. The DOD only specifically addresses campaign literature, websites, videos, television and conventional print advertisements. It is unclear what rules apply to mass texts sent from campaigns.
“Federal agencies have allowed campaigns to add disclaimers in a separate fundraising page, so long as it is accessible in the text,” said Dave Abrams, a spokesperson for Sears’ campaign. “Standard practice, but will be helpful information for those who were clearly very concerned about it.”
The DOD’s directive for political candidates using military photos says it “must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photographs imply endorsement by the Department of Defense or their particular Military Department.”
The guidance does not list an exclusion for texts and links to separate pages, making it unclear if Sears is in violation.
Additionally, on the fundraising page, where she uses multiple military images at the top, the disclaimer is at the bottom. It is visible after scrolling past all of the sign-up boxes to donate to her campaign. It is not clear if this satisfies the DOD’s requirement for a “prominent and clearly displayed disclaimer.”
Attorney Jeffrey Breit says he believes that this is still technically a violation.
“I am not a DOD expert by any stretch, but I think that the disclaimer needs to be prominently displayed in the face of the political ad or political outreach,” he said. “You should not have to link to some other hyperlink to find out about the disclaimer.”
“Disclaimers need to be available for the viewer to know without having to call up the DOD to ask if they’re endorsing,” Breit continued. “Adding a link is the same thing as making them make a phone call, so I think it is technically a violation.”
(Note: Breit has donated to Democratic campaigns in the past.)
The Federal Elections Commission says that “disclaimers must be ‘clear and conspicuous’ regardless of the medium in which the communication is transmitted. A disclaimer is not clear and conspicuous if it is difficult to read or hear, or if its placement is easily overlooked.”
Retired Vice Admiral Kevin Green believes the rules are clear in this situation.
“The point is that anyone who uses their current or former specific duties, position, photographs in military uniform along with other non-military details – it needs to just simply say ‘use of the uniform does not imply endorsement by the Department of the Army or the Department of Defense.’”
Green said this helps serving members understand their relationship with the Constitution.
“It’s a very simple rule. It’s one that needs to be followed, and it is intended to ensure both that serving members understand their relationship to the Constitution and to the rules as specified by the Department of Defense and that anyone who sees that picture, photograph or likeness in uniform, understands that this is simply an element of that person’s background and history.”
As for having to click a link to view the disclaimer, Green does not understand why the recipient would need to take a second action to view it.
“My sense is that the disclaimer must be as clear and apparent as the image of the uniform,” he said. “Frankly, I don’t understand why a separate action should be required to expose it.”
The Department of Defense, which has not commented on similar stories in the past, did not respond to a request for comment on this story.