The ad shows a mother and her son perusing a department store's boys' section and telling Marylanders to take advantage of tax-free back-to-school shopping this month. But to Democrats and ethics watchdogs, it looks like free campaign advertising for Gov. Robert L. Ehrlich Jr.
First lady Kendel Ehrlich went to the White Marsh Macy's yesterday to unveil an advertisement starring her and her 7-year-old son, Drew, saying it is a public service to let Marylanders know about the tax break.
From Aug. 23 to 27, under a state law passed unanimously by the General Assembly last year, Maryland will waive sales taxes on clothing and shoes that cost less than $100.
The head of the state Democratic Party called on television stations yesterday not to broadcast the ad, which was produced in coordination with the Maryland Retailers Association, a group that has allied with the governor on several major issues, including opposition to an increase in the minimum wage.
"People should be informed of this, but do it with an ad with a person on the street ... not by family members of candidates in tough election fights," said Democratic Party Chairman Terry Lierman. "I think [the governor] is just trying to be cute in skirting the law."
Kendel Ehrlich defended the ad yesterday, saying that she is just encouraging Marylanders to patronize the state's merchants and save some money.
"If they do that, it's a real shame," she said of the Democrats' efforts.
Months ago, legislators barred candidates from using taxpayer funds to put themselves on the air during the election season.
But the sales tax ad was not produced with taxpayer funds. The retailers association paid to record the radio version, and WMAR-TV paid to tape the video, and it will be run only if stations agree to air it for free.
Furthermore, although the Ehrlichs are featured in every scene, it does not show -- or mention -- the governor, the only family member who is a candidate.
Del. Peter Franchot, a Montgomery County Democrat who helped draft the language in this year's budget limiting candidate ads, said legislators considered adding candidates' families to the prohibition but decided against it, thinking no one would avoid the rule that way.
"We made it very clear to everybody that this type of ad by politicians, whether they be Democrat or Republican, is wrong," said Franchot, who is running for comptroller. "It's just too bad that Bob Ehrlich is trying to skirt the edges of what was a very clear legislative mandate."
Tom Saquella, the retailers association president, said he approached Kendel Ehrlich to appear in the ad, not the other way around. He said she was a spokeswoman for the "Shop Maryland" campaign during the holidays for two years and did a good job.
She is the perfect person to appeal to the retailers' target demographic for the back-to-school shopping event because she is the mother of two young boys, he said.
"This is not about politics," Saquella said. "It's about economics."
The retailers and the state are asking television stations to broadcast the ad for free as a public service, but the stations are under no obligation to do so.
Federal Communications Commission spokeswoman Rebecca Fisher said television stations are required as part of the licensing procedure to show that they have aired community programming.
They can include public service advertisements in their applications as evidence of their commitment to the community, but it is up to FCC commissioners to decide whether an ad counts as public service, she said.
State campaign finance law limits the ability of outside groups to pay for advertising on a candidate's behalf. But to be regulated as a campaign expenditure, the air time or ad-production services would have to be for the clear purpose of advocating for the victory or defeat of a candidate, said Ross Goldstein, the state deputy elections administrator.
In determining whether an expenditure should be regulated under campaign finance law, the State Board of Elections considers whether the money would have been spent if there hadn't been an election, the board's guidebook says. In this case, a similar ad ran in 2001, a year before a gubernatorial election and the last time the state had a tax-free shopping week.
Before the 2001 tax-free week, the retailers group asked Gov. Parris N. Glendening, a Democrat, to appear in an ad, but he declined, Saquella said. Instead, Comptroller William Donald Schaefer -- the state's chief tax collector -- recorded a spot in which he raced through Arundel Mills mall tossing clothes into a shopping cart.
Schaefer spokesman Michael Golden said the comptroller's office considered promoting the tax-free week by using the same ad but decided against it for fear that it would violate the new law.
Schaefer was supposed to appear with Kendel Ehrlich at Macy's yesterday but decided to skip it because of the political issue, Golden said.
"He's not interested in people playing political games," Golden said.
Bobbi Walton, director of Common Cause Maryland, a public ethics watchdog group, said that even if this ad falls within the letter of the law, it violates the spirit of restrictions on election-year advertising.
Every scene in the ad focuses on Kendel or Drew Ehrlich -- the finale shows Drew popping out of a circular clothes rack, beaming at the camera and shouting, "Shop Maryland!" -- which Walton said is unnecessary to inform the public.
"It benefits the governor and his family, and it doesn't really benefit the public," Walton said.
The 2005 legislation on tax-free shopping was sponsored by Del. Jean B. Cryor, a Montgomery County Republican and mother of three who calls herself a shopaholic. Cryor said the 2001 tax-free week benefited shoppers, retailers and the state's coffers because people spent more on other items that were subject to sales tax.
Saquella said the 2001 tax-free period boosted retailers' sales 25 percent for that week and 10 percent for the month compared with the corresponding period a year earlier.
Cryor said she has been through the back-to-school wringer enough times not to question whether promoting the tax-free week is a public service.
"I don't know any mother who would," she said.
To see the video, go to baltimoresun.com/taxfree.