Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
August 19, 2005
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2005-07
Mr. Andy Mayberry
Andy Mayberry for Congress
1222 Orchard Lake Lane
Hensley, AR 72065
Dear Mr. Mayberry:
We are responding to your advisory opinion request
concerning the application of the Federal Election Campaign
Act of 1971, as amended ("the Act"), and Commission
regulations to the publication and distribution of two
periodicals, The East Ender newspaper and The Spirit
Magazine, during your campaign for a seat in the U.S. House
of Representatives in the 2005-2006 election cycle. Your
request asks whether costs of publishing and distributing
The East Ender and The Spirit Magazine are expenditures, and
whether your authorized committee may purchase advertising
space in The East Ender.
Even though you co-own the corporation that publishes
both periodicals, the press exemptions from the definitions
of "contribution" and "expenditure" would apply to the bona
fide news stories described in your request. The press
exemption, however, would not apply to certain commentaries
and editorials. Consequently, the Commission concludes that
costs of publishing and distributing editions of The East
Ender and The Spirit Magazine will be prohibited corporate
contributions or expenditures if the editions contain
commentaries or editorials, including your opinion columns,
that are coordinated communications. Lastly, the Commission
concludes that your authorized committee may purchase
advertising space in The East Ender under certain
conditions.
Background
The facts of this request are presented in your letter
received on May 16, 2005, in an e-mail message to you dated
May 26, 2005, and in your e-mail message received on May 27,
2005.
You and your wife co-own Spirit Publications, Inc., an
incorporated media company that publishes both The East
Ender newspaper and The Spirit Magazine, collectively,
"Periodicals." The East Ender is a monthly local newspaper
in the East End community in Arkansas with a circulation of
approximately 1,500. You represent that it includes opinion
columns and bona fide news stories that are part of a
general pattern of campaign-related news accounts that give
reasonably equal coverage to all opposing candidates in the
circulation area. The Spirit Magazine is a monthly
publication that circulates primarily in central Arkansas
and that has a circulation of more than 10,000. The
circulation area of the Periodicals is within Arkansas' 2nd
Congressional District. The chief source of revenue for
both The East Ender and for The Spirit Magazine is
advertising revenue.
In addition to being a co-owner of Spirit Publications,
Inc., you are a regular opinion columnist for both
periodicals. Earlier this year, you became a candidate to
represent Arkansas' 2nd Congressional District in the U.S.
House of Representatives. Your principal campaign committee
is Andy Mayberry for Congress Committee ("Committee").
Questions Presented
1. May Spirit Publications, Inc. continue to publish and
distribute your opinion columns in the Periodicals while you
are a candidate for Congress?
2. Would the costs of publishing and distributing bona
fide news stories about Federal elections and local
candidates in The East Ender be contributions or
expenditures?
3. May the Committee purchase advertising space in The
East Ender at the same standard rate that such space is sold
to other advertisers?
Legal Analysis and Conclusions
Question 1. May Spirit Publications, Inc. continue to
publish and distribute your opinion columns in the
Periodicals while you are a candidate for Congress?
Yes, Spirit Publications, Inc. may continue to publish
and distribute your opinion columns in the Periodicals
unless your opinion columns are coordinated communications,
and are thus impermissible in-kind contributions and
expenditures.
The Act defines an in-kind contribution to include an
expenditure "made by any person in cooperation,
consultation, or concert with, or at the suggestion of, a
candidate, his authorized political committee, or their
agents . . . ." 2 U.S.C. 441a(a)(7)(B)(i). The Commission
implemented this statutory provision as it applies to
communications in the "coordinated communication" regulation
at 11 CFR 109.21. Consistent with the Act, a coordinated
communication is an in-kind contribution by the person
paying for the communication, unless it comes within an
exemption from the definition of "contribution." 2 U.S.C.
441a(a)(7)(B)(i); 11 CFR 109.21(b).
Commission regulations define the terms "contribution"
and "expenditure" to include any gift of money or "anything
of value" for the purpose of influencing a Federal election.
11 CFR 100.52(a) and 100.111; see also 2 U.S.C. 441b(b)(2)
(providing a similar definition for "contribution or
expenditure" with respect to corporate activity). However,
Commission regulations exempt from the definitions of
"contribution" and "expenditure" "any news story,
commentary, or editorial distributed through the facilities
of any broadcasting station, newspaper, magazine, or other
periodical publication."
11 CFR 100.73 and 100.132. See also 2 U.S.C. 431(9)(B)(i)
(statutory exemption from the definition of "expenditure").1
These exemptions do not apply to commentaries and editorials
that are distributed through facilities that are owned or
controlled by a political party, political committee, or
candidate. 2 U.S.C. 431(9)(B)(i); 11 CFR 100.73 and
100.132. Because you are a candidate for Federal office and
your opinion columns are distributed through publications
that you co-own, those opinion columns are not exempt from
the definitions of "contribution" or "expenditure" under the
press or media exemption.
Furthermore, the Act and Commission regulations
prohibit any corporation from making any contribution or
expenditure, including providing "anything of value," in
connection with a Federal election. 2 U.S.C. 441b(a); 11
CFR 114.1(a), 114.2(b)(1) and (b)(2). Any person who is
prohibited from making contributions or expenditures, such
as a corporation, is also prohibited from paying for a
coordinated communication. 11 CFR 109.22. Because the
commentaries and editorials published by Spirit
Publications, Inc. in the Periodicals are not exempt from
the definitions of "contribution" and "expenditure," the
Periodicals may not carry commentaries or editorials,
including your opinion columns, that constitute coordinated
communications.
The Commission's "coordinated communication" regulation
at 11 CFR 109.21 specifies that a payment for a
communication is made for the purpose of influencing a
Federal election, and is an in-kind contribution to the
candidate or authorized committee with whom or which it is
coordinated, if it satisfies the following three-pronged
test: (1) the communication is paid for by a person other
than the Federal candidate or authorized committee in
question; (2) one or more of the six conduct standards set
forth in 11 CFR 109.21(d) is satisfied ; and (3) one or more
of the four content standards set forth in
11 CFR 109.21(c) is satisfied. See 11 CFR 109.21(a) and
(b)(1). In addition, coordinated contributions, like other
in-kind contributions, are treated as expenditures under 11
CFR 100.111.
Payment Source
The first prong of the "coordinated communication" test
specifies that the communication is paid for by "a person
other than that candidate [or] authorized committee." 11
CFR 109.21(a)(1). In the circumstances you present,
although the
opinion columns would be written by you, they would be paid
for by Spirit Publications, Inc. As a result, your opinion
columns would satisfy the "payment" prong of the
"coordinated communication" test.
Conduct Standard
The next prong of the "coordinated communication" test
is a "conduct standard" that focuses, in relevant part, on
whether the candidate or the candidate's agents "request or
suggest" or are "materially involved" in the making and
airing of a communication, or engage in "substantial
discussion" about the communication. 11 CFR 109.21(a)(3)
and (d)(1) through (3). Because you would be,
simultaneously, the author of the opinion columns in the
Periodicals, the editor of the Periodicals, and a candidate
for Federal office, Spirit Publications, Inc.'s continued
publication of your opinion columns would satisfy these
conduct standards.
Content Standard
The last prong of the "coordinated communication" test
is the "content standard."
See 11 CFR 109.21(a)(2).2 Four types of communications
satisfy the content standard:
(1) a public communication that expressly advocates the
election or defeat of a clearly identified Federal candidate
(no matter when made); (2) a public communication that
disseminates, distributes or republishes campaign materials
(no matter when made); (3) electioneering communications;
and (4) a public communication that refers to a political
party or clearly identified Federal candidate that is
disseminated 120 days or fewer before a primary, general,
special or runoff election and is directed to voters in the
candidate's jurisdiction. See 11 CFR 109.21(c).
Because your opinion columns constitute "public
communications,"3 if any of your future opinion columns
expressly advocate the election or defeat of you or any
other clearly identified Federal candidate, those columns
will satisfy the "express advocacy" content standard in 11
CFR 109.21(c)(3). Similarly, if any of your future opinion
columns disseminates, distributes, or republishes, in whole
or in part, campaign materials prepared by you, by any other
Federal candidate, or by an agent of you or any other
Federal candidate, it will satisfy the "republication"
content standard in 11 CFR 109.21(c)(2), unless such
dissemination, distribution, or republication qualifies for
one of the exceptions described in 11 CFR 109.23(b).
To meet the "120 day public communication" content
standard, a communication must: (1) satisfy the definition
of "public communication" in 11 CFR 100.26; (2) refer to a
political party or to a clearly identified candidate for
Federal office; (3) be directed to voters within the
jurisdiction of the clearly identified candidate; and (4) be
publicly distributed or disseminated within 120 days of an
election for Federal office. 11 CFR 109.21(c)(4). With
regard to the first requirement, as explained above, your
opinion columns are "public communications" under 11 CFR
100.26. As to the second requirement, the Commission notes
that previous opinion columns that have appeared in the
Periodicals contain your full name and photograph in the
byline. Your name and photograph in the byline of your
opinion columns are both references to a clearly identified
candidate for Federal office while you are a candidate. See
2 U.S.C. 431(18) (defining "clearly identified"). With
respect to the third requirement, you have indicated that
the circulation area of the Periodicals is within Arkansas'
2nd Congressional District. As such, your opinion columns
would satisfy the third requirement of the "120 day public
communication" content standard.
Having satisfied the first, second, and third
requirements, opinion columns in the Periodicals containing
a byline with your name and photograph that are publicly
distributed or disseminated within 120 days of an election
for Federal office would meet the "120 day public
communication" content standard. Conversely, opinion
columns in the Periodicals that do not bear a byline with
your name or photograph and do not contain any other
reference to a clearly identified Federal candidate or to a
political party would not meet this content standard,
regardless of when they are publicly distributed or
disseminated.
Therefore, any editorial or commentary in the
Periodicals, including your opinion column, that satisfies
any of the content standards discussed above would be an
impermissible in-kind contribution.4 As such, it would also
be an impermissible corporate expenditure. See 2 U.S.C.
441b(b)(2) and 11 CFR 100.111.
Question 2. Would the costs of publishing and
distributing bona fide news stories about Federal elections
and local candidates in The East Ender newspaper be
contributions or expenditures?
No, under the circumstances you describe, these costs
would not be contributions or expenditures by Spirit
Publications, Inc.
Although the press exemption does not apply to certain
commentaries and editorials that are distributed through
facilities that are owned or controlled by a political
party, political committee, or candidate, as discussed
above, it does apply to the costs of news stories that are
bona fide new accounts subject to certain conditions even if
the newspaper or magazine is owned or controlled by a
candidate. See 11 CFR 100.73 and 100.132. Thus, the
expenses of publishing and distributing editions of The East
Ender containing bona fide news stories about Federal
elections and candidates are not contributions or
expenditures because the news stories are part of a general
pattern of campaign-related news accounts that give
reasonably equal coverage to all opposing candidates in the
circulation area. Id.
Question 3. May the Committee purchase advertising space
in "The East Ender" at the same standard rate that such
space is sold to other advertisers?
Yes, the Committee may purchase advertising space in
The East Ender at the same standard rates that Spirit
Publications, Inc. sells such space to other advertisers, so
long as that rate is the usual and normal charge for such
advertising, and normal practices for assigning advertising
space are followed, and payment terms for the Committee
follow normal billing practices. See 11 CFR 100.111(e).
This response constitutes an advisory opinion
concerning the application of the Act and Commission
regulations to the specific transaction or activity set
forth in your request. See 2 U.S.C. 437f. The Commission
emphasizes that if there is a change in any of the facts or
assumptions presented, and such facts or assumptions are
material to a
conclusion presented in this advisory opinion, then the
requestor may not rely on that
conclusion as support for its proposed activity.
Sincerely,
(signed)
Scott E. Thomas
Chairman
_______________________________
1 These exemptions are known as the "press exemption" or the
"media exemption."
2 The content standard of the "coordinated communication"
test has been the subject of ongoing litigation in Shays v.
FEC, 337 F. Supp. 28 (D.D.C. 2004), aff'd, No. 04-5352 (D.C.
Cir. Jul. 15, 2005). Although the United States Court of
Appeals for the District of Columbia Circuit held that it
was permissible for the "coordinated communication"
regulation to contain a content standard, it found that the
one promulgated by the Commission did not meet the
requirements of the Administrative Procedure Act. Slip op.
at 39.
Prior to the Court of Appeals ruling, the Commission
decided to initiate a rulemaking to determine whether to
amend the coordinated communication regulation, or to
provide a new explanation and justification for the current
regulation. Please note that pending the outcome of further
litigation, a change in the regulation, or a new explanation
and justification, the Commission's current regulation in 11
CFR 109.21 defining "coordinated communication" remains in
full force and effect. Accordingly, the guidance in this
advisory opinion may be relied upon while the current
coordination rule remains in effect. See
2 U.S.C. 438(e).
3 Communications, including opinion columns, in a newspaper
or magazine are within the definition of "public
communication" in 11 CFR 100.26.
4 Because the press exemption does not apply to any
editorial or commentary appearing in periodicals owned or
controlled by a Federal candidate, editorials and
commentaries that are coordinated with other Federal
candidates (i.e. that satisfy the payment, conduct and
content standards of coordinated communication) are also
impermissible in-kind contributions to those other Federal
candidates.