State Rep.-elect Joe Sam Queen, D-Haywood, cannot collect damages worth three times the amount of money his 2010 state Senate opponent spent on television ads in their campaign. That’s the unanimous decision of a three-judge panel of the N.C. Court of Appeals.
Appellate judges ruled that neither Queen nor Sen. Ralph Hise, R-Mitchell, “fully complied” with the state’s 1999 Stand By Your Ad law. Because Queen could not show that he complied with the law while Hise violated it, Queen is entitled to no money in the case.
“As both plaintiff and defendants failed to provide proper disclosures of the joint sponsorship of television advertisements by both the candidate committee and the political party, plaintiff’s claim is barred by the statutory tu quoque defense,” according to Judge Donna Stroud’s opinion. The tu quoque or “you too” defense essentially says that the plaintiff in the case engaged in the same conduct as the defendant.
Queen was the incumbent and Hise the challenger in the 2010 campaign for the N.C. Senate District 47 seat. Hise beat Queen with 56 percent of the 57,055 votes cast in the western North Carolina race.
Queen’s election committee filed suit in January 2011 against Hise’s committee and against the N.C. Republican Executive Committee. The suit contended that Hise and the GOP violated state law by failing to disclose properly that the Republican group had paid for TV ads identified as being sponsored by Hise’s campaign committee.
A Haywood County trial court ruled in the Republicans’ favor in December 2011. The three-judge appellate panel heard Queen’s appeal Oct. 10.
Stroud’s opinion noted some of the difficulties she and fellow appellate Judges Cheri Beasley and Rick Elmore faced in deciding the case. No prior case has interpreted the relevant Stand By Your Ad law provisions, “and given the ambiguity inherent in the statute,” Stroud wrote, “it is not surprising that plaintiff and defendants would come to slightly different understandings of the requirements of the statute.”
The appellate judges “do not mean to imply that either plaintiff or defendants intentionally violated” the law.
At issue is the 1999 state law designed to help voters know who’s responsible for the content of campaign messages they see, read, and hear in the media. Dubbed “Stand By Your Ad,” the law allows a candidate for office to recover damages of up to three times the amount of money spent on “improper” advertising that does not identify the ad’s sponsor correctly.
“The enforcement mechanism chosen by our legislature is unique in the world of election law,” Stroud notes in her opinion. “[I]t appears North Carolina has the only statute that provides candidates with a private cause of action against their opponents for advertising disclosure violations, rather than enforcement through government-enforced criminal or civil penalties.”
A candidate can collect money from his opponent only if the plaintiff in a lawsuit can prove that he violated none of the law’s disclosure requirements and that the defendant did commit violations.
The 2010 race between Queen and Hise featured “several hundred thousand dollars” of television ads. The Democratic and Republican parties paid to produce the ads for their respective candidates. In both cases, the parties paid the bulk of the bill for the TV ad campaigns. Democratic Party contributions covered 91 percent of Queen’s advertising, while Republican Party contributions paid for 84 percent of Hise’s advertising, according to the court opinion.
“Substantively, the only difference in the actions of the plaintiff and the defendants is that the Democratic Party ran the contributed funds briefly through the candidate’s campaign account before they were used for a media buy, while the Republican Party sent the funds directly to the media company to be held ‘in escrow’ for the candidate to be disbursed for a media buy only at the candidate’s discretion,” Stroud wrote.
Judges noted that funds Democrats transferred to Queen’s campaign account normally remained with Queen “no longer than several hours — once only 11 minutes” before heading to the company responsible for buying media air time.
Both Queen and Hise listed themselves or their campaign committees as the ad “sponsor” in the required on-air disclosure statements. Neither candidate listed his political party as an ad sponsor.
Stroud labels as “ambiguous” the provision in the law regarding proper identification of the ad’s sponsor. It’s not clear whether the General Assembly meant to include the party that paid to produce the ad, the party that bought the media air time, or both, Stroud wrote.
The appellate judges sided with the last option. “Air time without a message is white noise; the message is the only portion of an ‘advertisement’ with any substantive content,” Stroud wrote. “Failure to identify the entity which paid for the message’s production would be contrary to the primary purpose of the ‘Stand by Your Ad’ law.”
“We hold that payment of production costs for the ‘message,’ here the videos, constitutes part of the sponsorship of an ‘advertisement,’” under the law, the judge added. “Thus, for the ‘sponsors’ to be properly identified, all of the purchasers of both parts of the advertisement [production and air time] must be identified in the disclaimer.”
Since Queen did not identify the Democratic Party as a sponsor or co-sponsor of his ad, he did not qualify to seek damages in the case. The appellate judges did not address whether Hise and the Republicans followed the law in the method they used to pay for the media air time.
Since the appellate panel’s ruling was unanimous, the N.C. Supreme Court is not required to take the case. The state’s highest court could choose to take the case if Queen appeals.
While Hise’s 2010 victory knocked Queen out of the state Senate, both men will serve in the new General Assembly that convenes in Raleigh in January. Hise won re-election to Senate District 47, while Queen won an open race for House District 119.
Mitch Kokai is an associate editor of Carolina Journal.