May Campaign Materials Bear the Great Seal?
Q: I work on the re-election campaign for a Senator, and I have a question about the use of patriotic symbols on campaign literature. I saw that Sen. David Vitter’s (R-La.) opponent has filed an ethics complaint alleging that Vitter used the great seal of the United States on campaign materials. When our campaign sends out mass mailings, we sometimes use letterhead that bears a patriotic eagle symbol that resembles the great seal. Should we stop doing so?
[IMGCAP(1)]A: The complaint you refer to is one filed last week by the campaign manager for Rep. Charlie Melancon (D-La.) against Vitter alleging that Vitter unlawfully sent out a campaign fundraising letter bearing a facsimile of the great seal of the United States. Before turning to that complaint and your question, what is the great seal and why all the fuss about it?
The great seal dates back to the earliest days of the United States. In fact, it was on Independence Day itself — July 4, 1776 — that the Continental Congress first passed a resolution creating a committee to “bring in a device for a seal for the United States of America.” The committee was composed of three men: Benjamin Franklin, John Adams and Thomas Jefferson. Congress ultimately did not approve of the committee’s proposed design, and it was not until six years and several committees later that Congress settled on a design for the seal.
Today, the great seal is used to seal documents 2,000 to 3,000 times a year. These include treaty ratifications and appointments of ambassadors, Cabinet officers and other officers appointed by the president. The die and press that affix the great seal are locked in a glass case at all times at the Department of State, even during the sealing of a document.
In 1966, Congress passed a bill protecting the great seal from abuse and making it a crime to display any likeness of the great seal for the purpose of conveying the false impression of approval by the U.S. government. President Lyndon Johnson signed the bill into law, stating that for many years there had been a need for legislation governing the commercial reproduction and use of our great seal.
It is this law that Melancon’s campaign manager claims that Vitter violated. The complaint alleges that Vitter sent a campaign fundraising letter with a “bald eagle with outstretched wings, clutching arrows and an olive branch, in other words, a facsimile of the Great Seal.” Vitter’s campaign has fired back, calling the complaint “frivolous.”
So, may you use images resembling the great seal on your campaign materials? Unfortunately, the statute in question is not easy to parse. Essentially, it makes it illegal to display “any printed or other likeness” of the great seal “or any facsimile thereof” on any stationery “for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval” by the U.S. government. The Senate Ethics Manual states that while the interpretation of the statute is a matter for the Department of Justice, “it appears that in most cases use of … the Great Seal for normal official Senate business would be appropriate; by contrast, commercial use, personal use or campaign use would be improper.” The manual also states that “if a Member’s campaign wants to use a symbol of government on its campaign stationery, a depiction of the Capitol dome would be appropriate.” (The House Ethics Manual explains that the reason for the distinction is that depictions of the Capitol Dome, unlike the great seal, are in the public domain.)
Thus, the Senate Ethics Committee has said that “in most cases” it “appears” that campaign use of the great seal “would be improper,” but the panel has left formal interpretation of the statute to the DOJ and the courts. Neither the DOJ nor the courts have ever issued such an interpretation, leaving many questions unanswered. For example, what is meant by the terms “likeness” and “facsimile” of the great seal? The dictionary defines a likeness as a “copy” and a “facsimile” as an “exact copy.” Does this mean that the prohibition applies only to exact copies of the great seal? This would be significant in Vitter’s case because the symbol on his campaign letter is not an exact replica of the great seal. Among the differences, the eagle on Vitter’s campaign letters faces a different direction than the eagle on the great seal.
In addition, when is the great seal displayed “in a manner reasonably calculated to convey” the impression of approval by the U.S. government? Again, the answer could be significant to Vitter’s case. Vitter’s campaign letter bears the stamp “Paid for by David Vitter for U.S. Senate,” and its politically charged content is such that it would seem extremely unlikely that anyone would conclude that it was endorsed by the U.S. government, e.g., “I’m fighting President Obama and the liberals in Washington.”
In sum, it is not clear in what circumstances it is permissible to use symbols resembling the great seal. The language of the statute suggests that it is probably OK to use such symbols in circumstances that are not intended to convey the approval of the U.S. government. However, the language is ambiguous, and there is always the risk that your campaign opponent could take a different view and file an ethics complaint. As you may know, a Senate ethics complaint automatically triggers a “preliminary inquiry” by the Senate Ethics Committee, which I suspect could be an unwelcome burden among all of the other demands on your Senator’s time. If you want to avoid any chance of that headache, perhaps your campaign materials would look just as nice with a Capitol Dome?
C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create any attorney-client relationship.