ANALYSIS — After spending nearly $10 million on television in the Pennsylvania Senate race, Republican Mehmet Oz has made a slight change to his ads in the weeks before the primary: He added his first name to the portion of the ad where he makes clear he approved the message. 

And it’s not immediately clear why. 

The disclaimer can seem like a rote few words in every campaign ad, but the failure to abide by specific legal guidelines can result in a fine or a campaign forfeiting the right to pay the lowest airtime rate for its ads. 

After watching hundreds (maybe, thousands?) of campaign ads over the last couple decades, I noticed something when Oz started his campaign blitz in December. He chose to eschew his first name and go with his TV moniker: “I’m Dr. Oz and I approve this message.” 

I’d never seen a candidate not use their first name. I don’t believe in accidents when it comes to the few precious words in campaign ads. And the decision by the Oz campaign with regard to his name risks running afoul of Federal Election Commission and Federal Communications Commission guidelines, with different potential consequences. 

Oz is locked in a competitive and expensive primary with former hedge fund CEO Dave McCormick, 2018 lieutenant governor nominee Jeff Bartos, former ambassador Carla Sands, and Trump campaign activist Kathy Barnette in the race to replace GOP Sen. Patrick J. Toomey, who is not seeking reelection. The race is important because Pennsylvania is one of the two best takeover opportunities Democrats have in their quest to retain narrow control of the Senate. 

Oz has spent $9.1 million on TV ads through this week, according to Kantar/CMAG, and has another $1.8 million reserved for future ads. 

“That’s a problem if they don’t have the first name,” according to former FEC chairman Ann Ravel, a Democrat appointed by President Barack Obama. “While it isn’t explicit about how you should be named, what is explicit is that it has to be so clear and so much information that people can know absolutely who you are.”

‘Stand by your ad’

According to part of the explanation of the “stand by your ad” provision on the FEC website, “the candidate must deliver an audio statement identifying themself and stating that the candidate has approved of the communication. For example, ‘I am [candidate’s name], a candidate for [federal office sought], and I approved this advertisement.’”

The FEC lays out even more specific guidelines: 

• A communication transmitted through television or through any broadcast, cable, or satellite transmission, must include a statement that identifies the candidate and states that he or she has approved the communication. The candidate shall convey the statement either:
• A. Through an unobscured, full-screen view of himself or herself making the statement, or
• B. Through a voice-over by himself or herself, accompanied by a clearly identifiable photographic or similar image of the candidate. A photographic or similar image of the candidate shall be considered clearly identified if it is at least eighty (80) percent of the vertical screen height.

Even if people recognize him from his eponymous television show (89 percent of likely primary voters were aware of Oz in a late February poll by TargetPoint for the Free Beacon), including the doctor title, that doesn’t necessarily mean there’s complete clarity. “What people don’t know is what kind of a doctor he is,” added Ravel, who isn’t the only legal expert who believes Oz was in murky territory.

“The statute states that candidate ads must include a statement that ‘identifies the candidate’ and the FEC generally understands that to require both a candidate’s first and last name,” according to a second former FEC chairman who declined to speak on the record in order to speak freely. “I would not advise candidate clients to omit using their full name in the statement.” 

Dual citizenship

The strategic decision to go sans first name is more complicated than simply choosing to stay on brand. Consistently identifying himself as Mehmet could highlight his Turkish American heritage and be a liability to voters skeptical of foreign influence. Oz, who was born in Cleveland, was already attacked in the race to the point where he said he would renounce his dual Turkish citizenship if elected. 

A disclaimer discrepancy also has the potential for serious financial consequences. A faulty candidate disclaimer could result in a finding and fine from the FEC and jeopardize the candidate’s access to the lowest unit rate for ads from television stations around the state if it violates FCC guidelines. The rate for non-candidate groups tends to be at least twice the rate for candidates during the heat of the campaign season.

When I reached out to multiple people involved with the Oz campaign in February about the decision not to include his first name in the disclaimer, the campaign declined to respond.

This week, the Oz campaign is out with a new batch of ads with a slightly different disclaimer: “I’m Dr. Mehmet Oz and I approve this message.” When I reached out to the Oz campaign again about the change, the campaign declined to respond.

The latest version puts Oz in line with other current doctors serving in Congress who used their title and full name in the verbal disclaimer of their ads including Democratic Reps. Ami Bera of California and Kim Schrier of Washington, and GOP Rep. Greg Murphy of North Carolina and Republican Sen. Roger Marshall of Kansas. 

So what’s changed for Oz? Without knowing directly from the campaign, the race for the GOP nomination is now within a 45-day window before the May 17 primary in which “legally qualified” candidates are eligible for the lowest unit charge from television stations. Some of the FCC disclaimer regulations include:

A candidate meets the requirements of this subparagraph if, in the case of a television broadcast, at the end of such broadcast there appears simultaneously, for a period no less than 4 seconds —

• (i) a clearly identifiable photographic or similar image of the candidate; and
• (ii) a clearly readable printed statement, identifying the candidate and stating that the candidate has approved the broadcast and that the candidate’s authorized committee paid for the broadcast.

FCC guidelines are in place for the stations, not the candidates.

There’s a long way to go before Oz would face consequences if omitting his first name in the disclaimer is deemed problematic. First, a complaint would have to be filed with the FEC, then the commission would have to issue a finding and agree on a violation and fine. That’s unlikely to happen.

But what happens if the station declines to force candidates to pay more after an alleged violation? The FEC has received complaints In the past accusing television stations of providing illegal corporate contributions to a candidate through lower ad rates. Usually, the tactic doesn’t get very far. 

For example, in 2004, Missouri Democrat Nancy Farmer’s campaign alleged that GOP Sen. Kit Bond’s campaign was no longer eligible for the lowest unit charge because of a faulty disclaimer and filed a formal complaint against the Missouri Broadcasters Association. In Advisory Opinion AO 2004-43, the FEC concluded that a broadcaster’s decision to offer Bond the lowest unit charge under these circumstances did not result in an in-kind contribution and found no violation of any disclaimer requirement over which the FEC had jurisdiction.

In the case of the Oz ads, there isn’t even agreement on whether there was a violation when he wasn’t using his first name. 

‘Clearly identified’

“Neither the statute nor the regulations specifically require the use of a first name or full name,” according former FEC chairman Bradley A. Smith, who was appointed by President Bill Clinton to fill a Republican-designated seat. “So the question would be whether or not it adequately identifies the candidate. That would depend on particular facts, possibly including things such as how well known the candidate is.”

Even without a first name, it’s possible that Oz complied with the regulations that say a candidate must be “clearly identified.”

“My quick read is that this is fine,” explained Smith, who is now a law professor at Capital University Law School in Columbus, Ohio. “Dr. Oz is pretty well known, and a person wondering who the heck this ‘Dr. Oz’ is could easily find out with a quick web search. It probably wouldn’t be considered ambiguous.”

Another Republican attorney who is not working with any of the Pennsylvania Senate candidates said it is not an issue the FEC would likely “to care about.”

“The rule, the law, is that they are clearly identified,” said campaign finance attorney Jessica Furst Johnson, a partner at Holtzman Vogel Baran Torchinsky and Josefiak PLLC. “It seems like a ticky tack issue.”

Nathan L. Gonzales is an elections analyst for CQ Roll Call.