Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
November 18, 2005
CERTIFIED MAIL
RETURN RECEIPT RQUESTED
ADVISORY OPINION 2005-18
The Honorable Silvestre Reyes
Member of Congress
The Reyes Committee, Inc.
1011 Montana
El Paso, Texas 79901
Dear Representative Reyes:
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 payments by your principal campaign committee
for a proposed weekly radio program in El Paso, Texas. The
Commission concludes that the payments for the proposed
radio program are a permissible use of campaign funds, and
that other Members of Congress may appear as guests on the
show.
Background
The facts presented in this advisory opinion are based
on your letters received on July 12, 2005 and September 19,
2005.
You are the United States Representative for the 16th
Congressional District of Texas, and are currently a
candidate for reelection in 2006.1 Your principal campaign
committee, the Reyes Committee, Inc. ("the Committee"),
intends to purchase time on an El Paso, Texas radio station
for a weekly 30-minute radio program that you intend to
host. The content of the show, conducted in Spanish, will
include commentary and discussion about Congressional,
campaign, and local issues.
The program will air on Mondays on KAMA-AM, a
commercial radio station in El Paso. It will be broadcast
live from KAMA-AM's studio in El Paso and will feature guest
participation and audience call-ins. The Committee will pay
$375 per week for each week that the program airs, which
includes the cost of the airtime and the use of the studio.
While this program is the first of its kind to air on KAMA-
AM, $375 per week is the amount that KAMA-AM charges for
airing similar types of programming. All costs will be paid
by the Committee using campaign funds. Each broadcast will
include a disclaimer indicating that the program was paid
for by the Committee.
You intend to begin broadcasting this program as soon
as possible and continue to broadcast throughout the primary
season. In addition, you may invite other Members of
Congress onto the show as guests. These Members of Congress
do not represent districts within KAMA-AM's listening area.
The program will not advocate the reelection of these other
Members of Congress and will not rebroadcast their campaign
materials.
Questions Presented
1. May the Committee pay for the radio program with campaign
funds?
2. If other Members of Congress who represent districts
outside KAMA-AM's listening area appear on the radio
program, would payment by the Committee for the program
result in coordinated communications and in-kind
contributions to those Members?
3. What is the proper disclaimer that the Committee must
include on all broadcasts?
Legal Analysis and Conclusions
1. May the Committee pay for the radio program with campaign
funds?
Yes, the Committee may use campaign funds to purchase
time on a radio station for a weekly radio program
addressing Congressional, campaign, and local issues as
indicated in your request.
The Act identifies six categories of permissible uses
of contributions accepted by a Federal candidate. Two of
these permissible uses are (1) otherwise authorized
expenditures in connection with the candidate's campaign for
Federal office, and (2) ordinary and necessary expenses
incurred in connection with the duties of the individual as
a holder of Federal office. 2 U.S.C. 439a(a)(1) and (a)(2);
11 CFR 113.2(a). You are currently a candidate for
reelection to the House of Representatives. Accordingly,
the Committee may use campaign funds to purchase time on a
radio station because the radio program would address
Congressional, campaign, and local issues and therefore
would be in connection with both your reelection campaign
and your duties as a Federal officeholder. See 2 U.S.C.
439a(a)(1) and (a)(2). These expenditures must be reported
by the Committee in accordance with 2 U.S.C. 434(a)(2).
The Commission next considers whether the provision of
airtime by KAMA-AM is a contribution to the Committee under
2 U.S.C. 431(8). The definition of "contribution" includes
"anything of value made by any person for the purpose of
influencing any election for Federal office." 2 U.S.C.
431(8)(A)(i); 11 CFR 100.52(a). Commission regulations
further define "anything of value" to include "the provision
of any goods or services without charge or at a charge that
is less than the usual and normal charge for such goods or
services." 11 CFR 100.52(d)(1). The usual and normal
charge for goods and services is determined by the price of
the goods in the market from which they ordinarily would be
purchased at the time of the contribution and the prevailing
commercially reasonable rate for services at the time the
services were rendered. 11 CFR 100.52(d)(2). Based on your
statement that $375 per week represents the "normal amount"
that KAMA-AM charges for this kind of program, and assuming
that this is in fact the prevailing commercially reasonable
rate, KAMA-AM would not be making a contribution to you or
the Committee if the Committee pays this rate for airtime
and studio time.
Finally, the Commission notes that the broadcasts would
refer to a clearly identified Federal candidate, would be
broadcast within 30 days of a primary election,2 and would
be targeted to the relevant electorate of the Federal
candidate. Nevertheless the radio broadcasts would not be
electioneering communications under 2 U.S.C. 434(f)(3) or 11
CFR 100.29(c)(3) because payments for these communications
would be reported as expenditures by the Committee. The
communication therefore falls under an exemption to the
definition of "electioneering communication." 2 U.S.C.
434(f)(3)(B)(ii); 11 CFR 100.29(c)(3).
2. If other Members of Congress who represent districts
outside KAMA-AM's listening area appear on the radio
program, would payment by the Committee for the program
result in coordinated communications and in-kind
contributions to those Members?
No, the appearance of other Members of Congress who
represent districts outside the KAMA-AM listening area on
the radio program would not result in coordinated
communications, and payment by the Committee would not be in-
kind contributions to those other Members of Congress.
The Act defines as an in-kind contribution an
expenditure made by any person "in cooperation,
consultation, or concert, with, or at the request or
suggestion of, a candidate, his authorized political
committees, 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. This regulation
specifies that a communication is a "coordinated
communication" if it satisfies the following three-pronged
test: (1) the communication is paid for by a person other
than the Federal candidate or the candidate's authorized
committee in question; (2) one or more of the four content
standards set forth in 11 CFR 109.21(c) is satisfied; and
(3) one or more of the six conduct standards set forth in 11
CFR 109.2l(d) is satisfied. The regulation also specifies
that a payment for a coordinated 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, and must be reported
as an expenditure made by that candidate or authorized
committee. 11 CFR 109.21(b)(1).
The proposed program does not satisfy the content prong
of 11 CFR 109.21(c).3 This prong may be satisfied if the
communication (1) is an electioneering communication under
11 CFR 100.29; (2) is a public communication that
disseminates, distributes, or republishes campaign materials
prepared by a candidate at any time; (3) is a public
communication that expressly advocates the election or
defeat of a clearly identified candidate at any time; or (4)
is a public communication that refers to a clearly
identified Federal candidate, is made within 120 days of an
election, and is directed to voters in the jurisdiction of
the clearly identified candidate.
As discussed above, the radio program is not an
electioneering communication, and therefore does not satisfy
11 CFR 109.21(c)(1). For the purposes of 11 CFR
109.21(c)(2), (3), and (4), the program is a public
communication as defined in 2 U.S.C. 431(22) and 11 CFR
100.26 because it is a communication by means of a broadcast
facility. You indicate that the radio program would not
disseminate, distribute, or republish campaign material, and
therefore the communication does not satisfy 11 CFR
109.21(c)(2). You also indicate that the program would not
expressly advocate the election or defeat of other Members
of Congress, and therefore the communication also does not
satisfy 11 CFR 109.21(c)(3).
In order to satisfy the "120 day public communication"
content standard, a program must meet all three elements of
11 CFR 109.21(c)(4). One of the elements is that the
program be directed to the voters of the clearly identified
candidate's jurisdiction. 11 CFR 109.21(c)(4)(iii).
Because the other Members of Congress's districts are not
within the listening area of the station broadcasting the
program, the radio program would not be directed to voters
in the jurisdiction of the clearly identified Members who
are also candidates. Therefore, the "120 day public
communication" content standard cannot be met because the
communication does not satisfy 11 CFR 109.21(c)(4)(iii).
Thus, the proposed communication would not satisfy any
of the content standards of 11 CFR 109.21(c). The fact that
the content prong would not be met establishes that the
proposed communication would not constitute a coordinated
communication. See
11 CFR 109.21(a) (requiring that all three prongs must be
satisfied for a communication to be a coordinated
communication). It is not necessary, therefore, to analyze
whether the payment and the conduct prongs of the
coordinated communication test are met. Consequently, the
payments by the Committee to broadcast the radio program
would not constitute in-kind contributions to other Members
of Congress.
3. What is the proper disclaimer that the Committee must
include on all broadcasts?
BCRA expanded the Act's disclaimer requirements
applicable to radio communications paid for by political
committees and authorized by Federal candidates. See
2 U.S.C. 441d(d)(1)(A); 11 CFR 110.11. Because the radio
program would be paid for by your principal campaign
committee and authorized by you, the communications would
require a disclaimer that complies with the "general content
requirements" of 11 CFR 110.11(b)(1), the "specifications
for all disclaimers" in 11 CFR 110.11(c)(1), and the
"specific requirements for radio communications authorized
by a candidate" in 11 CFR 110.11(c)(3). Radio
communications authorized by a candidate are required to
include an audio statement by the candidate that identifies
the candidate and states that he or she has approved the
communication. 11 CFR 110.11(c)(3)(i).
You inquire about the permissibility of a disclaimer
that states, "The preceding program was paid for by the
Reyes Committee, Inc., Ron Pate, Treasurer." This
disclaimer satisfies the "general content requirements" of
11 CFR 110.11(b)(1). However the disclaimer must also
satisfy the additional requirements for radio communications
approved by a candidate contained in 11 CFR 110.11(c)(3)(i).
Two examples of disclaimers that would satisfy these
regulations are:
(1) "I am Silvestre Reyes, a candidate for the House of
Representatives, and I approved this advertisement." 11 CFR
110.11(c)(3)(iv)(A).
(2) "My name is Silvestre Reyes. I am running for the
House of Representatives, and I approved this message." 11
CFR 110.11(c)(3)(iv)(B).
While these are examples of acceptable statements, they are
not the only statements that would meet the requirements of
the Act. 11 CFR 110.11(c)(3)(iv).
Any other Member of Congress who appears on the show
need not also make a disclaimer. You do not indicate that
any other Member of Congress would have any editorial
control over the content of the program or the statements of
yourself, other guests, or callers. They will not pay for
or authorize the communication, and therefore would not be
required to make a disclaimer under 2 U.S.C. 441d.
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
Enclosures (AOs 2004-1 and 2003-25)
Concurring Opinion of
Chairman Scott E. Thomas
Vice Chairman Michael Toner
Commissioner David M. Mason
Commissioner Danny Lee McDonald
Commissioner Ellen Weintraub
Re Advisory Opinion 2005-18
The opinion approved herein involved a radio program
paid for by the campaign committee of Congressman Reyes that
will include participation of other Members of Congress who
are federal candidates. While the opinion's conclusion
regarding a potential in-kind contribution by Congressman
Reyes' committee to the other candidates is adequately
addressed by noting that the program will not reach the
congressional districts of the other candidates,4 there is a
separate legal basis that could similarly resolve the in-
kind contribution issue. This legal basis turns on whether
the communication at issue runs within 120 days of a federal
candidate's election. Because we are aware of some
confusion in the regulated community on the latter issue, we
wish to further clarify application of the Commission's
coordinated communication regulations- by specifying that
the `refers to a candidate within 120 days of an election'
content prong of the regulations is triggered only by a
communication run within 120 days of the election of the
referenced candidate.
The provision in question is one of the regulations
adopted by the Commission following passage of the
Bipartisan Campaign Reform Act of 2002. In an effort to
clarify which communications the Commission wished to treat
as in-kind contributions by virtue of coordination with a
candidate, the agency adopted the content prongs at 11 CFR
109.21(c). Of relevance here, the Commission included:
A communication that is a public communication, as
defined in 11 CFR 100.26, and about which each of
the following statements in paragraphs (c)(4)(i),
(ii), and (iii) of this section are true.
(i) The communication refers to a
political party or to a clearly
identified candidate for Federal office;
(ii) The public communication is
publicly distributed or otherwise
publicly disseminated 120 days or fewer
before a general, special, or runoff
election, or 120 days or fewer before a
primary or preference election, or a
convention or caucus of a political
party that has authority to nominate a
candidate; and
(iii) The public communication is
directed to voters in the jurisdiction
of the clearly identified candidate or
to voters in a jurisdiction in which one
or more candidates of the political
party appear on the ballot.
Apparently, this regulation has generated some
confusion in circumstances where a federal candidate is
paying for a communication that includes a reference to one
or more other federal candidates and the communication
reaches voters in the jurisdictions of all the candidates
involved. For example, in the recent October 4, 2005
special election in California for the 48th Congressional
District, there was some concern that Democratic candidates
paying for ads including an endorsement by Sen. Feinstein
might have to treat some portion of the cost of such ads as
an in-kind contribution to Sen. Feinstein-even though Sen.
Feinstein's June 6, 2006 primary would not be within 120
days of the special House election. Using what we view to
be a strained construction, some apparently interpreted the
regulation's 120-day provision to be triggered by the date
of the paying candidate's election, rather than by the date
of the election of the endorsing candidate who is not paying
for any portion of the communication (such as Senator
Feinstein). We hope by this concurring opinion to clarify
that the regulation should be construed instead in the
common sense manner intended: Where someone is paying for a
communication that makes reference to a federal candidate,
the potential in-kind contribution arises under the 120 day
prong of the coordinated communication regulation only where
the election of the referenced candidate falls within 120
days of the communication.5
In the circumstances presented by the requestor, had
any of the other candidates who were referenced in the radio
program had primary elections more than 120 days removed
from the airing of the program, the 120 day prong of the
coordinated
communication regulation would not have applied as a matter
of law-regardless of whether the ads reached the
congressional district of those other candidates. Though
this separate legal analysis was not needed to reach a
conclusion in this particular advisory opinion, it may prove
determinative in other circumstances, and we hope to reduce
any unnecessary doubt on the underlying question.6
12/2/05 / s /
____________________
_______________________________
Date Scott E. Thomas
Chairman
12/2/05 / s /
____________________
_______________________________
Date Michael Toner
Vice Chairman
12/2/05 / s /
____________________
_______________________________
Date David M. Mason
Commissioner
12/2/05 / s /
____________________
_______________________________
Date Danny Lee McDonald
Commissioner
12/2/05 / s /
____________________
_______________________________
Date Ellen Weintraub
Commissioner
_______________________________
1 You filed a Statement of Candidacy with the Commission on
July 29, 2005.
2 Your letter indicates that the program will air "during
the primary season." The Commission notes that the relevant
primary date of your candidacy is March 7, 2006.
3 The content prong of the "coordinated communication" test
has been the subject of litigation in Shays v. FEC, 337 F.
Supp. 28 (D.D.C. 2004), aff'd, 414 F.3d 76 (D.C. Cir 2005),
petition for rehearing en banc denied Oct. 21, 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 in that the Commission failed
to provide a sufficient justification for it. 414 F.3d at
102.
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 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).
4 The opinion focuses on the `content prongs' of the
Commission's coordinated communication regulations at 11 CFR
109.21(c), particularly the language at (c)(4)(iii) that
reaches communications "directed to voters in the
jurisdiction of the clearly identified candidate."
5 We thought this legal conclusion was clear from the advice
issued to Alice Forgy-Kerr for Congress in Advisory Opinion
2004-1, available at www.fec.gov. There, the House
candidate's campaign committee wished to pay for and run ads
that would contain an endorsement by President Bush during a
timeframe that would straddle the date 120 days before the
Kentucky presidential primary. (Forgy-Kerr's primary was on
February 17, 2004, while the presidential primary was on May
18, 2004.) The Commission concluded that ads run more than
120 days before the President's primary election would fall
outside the reach of the 120 day provision at 11 C.F.R.
109.21(c)(4).
6 The Commission will have an opportunity to further address
this very issue soon in a Notice of Proposed Rulemaking on
Coordinated Communications (11 C.F.R. 109.21)