Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
June 30, 2006
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2006-10
Robert F. Bauer, Esq.
Caroline P. Goodson, Esq.
Perkins Coie LLP
607 Fourteenth St., NW
Washington, DC 20005
Dear Mr. Bauer and Ms. Goodson:
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 public service announcements ("PSAs") that
EchoStar Satellite LLC ("EchoStar") is planning to create
and broadcast. The Commission concludes that EchoStar's
planned PSAs featuring Federal candidates would not be
coordinated communications provided that certain conditions
are met. Specifically, the planned PSAs would qualify for
the charitable solicitation exemption from the definition of
"coordinated communication" in 11 CFR 109.21(g) provided
that: (1) the organizations for which the funds are
solicited are of the type described in 11 CFR 300.65; and
(2) the solicitations themselves comply with the
requirements of 11 CFR 300.65.
Background
The facts presented in this advisory opinion are based
on your letter received on February 21, 2006 and your
electronic-mail message received on May 11, 2006.
EchoStar is a limited liability company that is treated
as a corporation for tax purposes and FECA purposes. See 11
CFR 110.1(g). It provides pay-TV satellite service
nationwide via its Direct Broadcast Satellite system under
the brand name "DISH Network." EchoStar plans to air a
series of PSAs nationwide that will feature well-known
Americans delivering messages that promote, and solicit
donations to, charitable causes, such as aid to victims of
Hurricane Katrina, or awareness of important health issues
such as breast cancer or heart disease. The Appendix to
this advisory opinion contains a sample PSA script.
Background imagery in the communications will be limited to
imagery associated with the charitable organization and will
not include any campaign- or election-related images.
EchoStar will produce, direct, and record the PSAs, and
will have complete financial and creative control over each
PSA, including its timing. EchoStar intends to ask
prominent Americans, including Members of Congress, to
appear in the PSAs and read the scripts provided by
EchoStar. Regardless of whether or not a particular PSA
features a Member of Congress, the PSAs will not contain
campaign materials or expressly advocate the election or
defeat of a clearly identified Federal candidate; nor will
they refer to any political party, election or campaign, or
solicit any contributions for a political campaign or
political committee. Moreover, you have represented that no
campaign issues will be permitted as topics for any of the
PSAs and the PSAs will not make reference to any pending
official matter.1
EchoStar does not intend to air PSAs featuring
candidates during the relevant "electioneering
communication" time period.2 Thus, any PSA featuring a
Member of Congress who is a candidate for election will not
air in that Member's State (in the case of Senate
candidates) or Congressional district (in the case of House
candidates) within 30 days of the Member's primary or runoff
election, as applicable, or within 60 days of the Member's
general or runoff election, as applicable.
Question Presented
Do EchoStar's proposed public service announcements
featuring Members of Congress constitute coordinated
communications under the Act and Commission regulations?
Legal Analysis and Conclusions
No, EchoStar's proposed public service announcements
featuring Members of Congress ("the proposed PSAs") do not
constitute coordinated communications under the Act and
Commission regulations if they satisfy the requirements set
forth below.
The Act and 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. 2 U.S.C. 431(8)(A) and (9)(A); 11 CFR
100.52(a) and 100.111(a); see also 2 U.S.C. 441b(b)(2); 11
CFR 114.1(a)(1) (incorporating these definitions into the
terms "contribution" and "expenditure" with respect to
corporate activity). The Act defines an in-kind
contribution to include 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). 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).
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. Thus, EchoStar may not air
PSAs that constitute coordinated communications.
The Commission recently revised the definition of
"coordinated communication" at 11 CFR 109.21. See
Explanation and Justification for Final Rules on Coordinated
Communications, 71 FR 33190 (June 8, 2006).3 Generally, a
communication is considered a coordinated communication if
it satisfies the following three-pronged test: (1) the
communication is paid for, in whole or in part, 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). However, there are
exceptions to the general definition, including certain
kinds of endorsements and solicitations by Federal
candidates. See 11 CFR 109.21(g); see also
11 CFR 109.21(f) and (h).
In particular, the regulation exempts from the
definition of "coordinated communication" public
communications in which a Federal candidate solicits funds
for organizations pursuant to 11 CFR 300.65 provided that
the public communications do not promote, support, attack,
or oppose the soliciting candidate or another candidate
seeking election to the same office as the soliciting
candidate. See 11 CFR 109.21(g). The proposed PSAs are
public communications as defined in 2 U.S.C. 431(22) and 11
CFR 100.26 because they are satellite communications. In
addition, Federal candidates appearing in the PSAs will
solicit funds for charitable organizations. Based on your
description of the PSAs, the Commission concludes that the
PSAs would not promote, support, attack or oppose the
Federal candidates participating in the PSAs.4 Accordingly,
EchoStar's proposed PSAs would qualify for the charitable
solicitation exception provided that: (1) the organizations
for which the funds are solicited are described in
26 U.S.C. 501(c) and have applied for or have been granted
tax-exempt status pursuant to 26 U.S.C. 501(a) ("section
501(c) organizations"); and (2) the solicitations themselves
comply with the requirements of 11 CFR 300.65.5 See 11 CFR
109.21(g)(2); 11 CFR 300.65. If these conditions are met,
EchoStar's PSAs featuring Federal candidates would not
constitute coordinated communications.6
Furthermore, proposed PSAs that will be publicly
distributed more than 90 days
before the featured candidates' elections7 or that will not
be publicly distributed within the featured candidates'
jurisdictions would not be coordinated communications
because they would not satisfy the content prong of the
three-part test.8 If the proposed PSAs, however, will be
publicly distributed in the featured candidates'
jurisdictions within 90 days of the featured candidates'
elections and the PSAs do not solicit funds for section
501(c) organizations, then they would constitute coordinated
communications.9
Because the proposed PSAs would qualify for the
charitable solicitation exception in 11 CFR 109.21(g) under
the facts presented in your request, it is unnecessary to
consider the press exemption here. If the proposed PSAs
were not exempt under 11 CFR 109.21(g), it would be
necessary to consider the press exemption. See 2 U.S.C.
431(9)(B)(i); 11 CFR 100.73 and 300.65.
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)
Michael E. Toner
Chairman
Enclosure: (Advisory Opinion 2003-25 (Weinzapfel))
CONCURRENCE IN ADVISORY OPINION 2006-10 OF
COMMISSIONERS DAVID M. MASON AND HANS A. von SPAKOVSKY
AND DISSENT OF CHAIRMAN MICHAEL E. TONER
Commissioners Mason and von Spakovsky voted for this
advisory opinion with the reservations expressed below.
Because of the same reservations, Chairman Toner dissented.
Accordingly, this is a concurrence as to Commissioners Mason
and von Spakovsky and a dissent as to Chairman Toner.
This advisory opinion concerns the coordination
regulation, 11 C.F.R. 109.21 (2006), and particular public-
service announcements (PSAs) in which federal candidates
make solicitations for charities. The advisory opinion
correctly concludes that the PSAs are not coordinated
communications. However, the advisory opinion, citing the
advisory-opinion request, notes that no "campaign issues"
will be topics of the PSAs and that the PSAs will not refer
to any "pending official matter." Advisory Op. 2006-10,
2006 WL 1879008, at *1 & n.1 (F.E.C. June 30, 2006),
available at http://ao.nictusa.com/ao/no/060010.html (all
Internet sites visited July 10, 2006). We write to explain
that these facts are irrelevant and to emphasize that the
use of the phrase "campaign issues" does not mean the
Commission has a defined test for what constitutes a
"campaign issue."
As an initial matter, the PSAs are exempt from the
coordination regulation, because they do not promote,
support, attack, or oppose ("PASO") the candidates, or
opponents of the candidates, making solicitations. That is
the end of the inquiry. See 11 C.F.R. 109.21(g)(2). The
enumeration of additional non-statutory, non-regulatory
factors is inappropriate in an advisory opinion, whose
purpose is to apply the statute and regulations. See 2
U.S.C. 437f(a)(1) (1986).
There is no basis to conclude that the "campaign
issues" and "official matters" criteria proffered in the
request have any bearing on proper interpretation or
application of any relevant statutory or regulatory
requirements.
First, the coordination regulation includes four
separate content standards. See 11 C.F.R. 109.21(c)(1)-
(4). The Commission could have chosen "campaign issues" and
"pending official matters" as fifth and sixth content
standards, but it did not. See id. At one time the
Commission did attempt to pursue coordination claims based on
a "campaign themes" theory, see, e.g., Compl. at 7, FEC v.
Forbes, No. 04-5352 (S.D.N.Y. Sept. 3, 1998), but the
Commission withdrew the most recent suit filed on that basis,
see Statement of Reasons of Vice Chairman Wold & Comm'rs
Elliott, Mason & Sandstrom for Voting to Withdraw the
Commission's Complaint in FEC v. Forbes, et al., (F.E.C. May
26, 1999), available at
http://eqs.sdrdc.com/eqsdocs/00003A06.pdf, and later
promulgated a coordination regulation without adding
"campaign themes" to the regulation. See 11 C.F.R. 100.23
(2000), repealed as noted in Coordinated and Independent
Expenditures, 68 Fed. Reg. 421, 422 (2003) (final rules)
(citing P. L. 107-155, 214(b), (c) (2002)); General Public
Political Communications Coordinated with Candidates and
Party Committees; Independent Expenditures, 65 Fed. Reg.
76138, 76138-40, 76141-45 (2000) (final rules). This is not
because the possibility did not arise. Indeed, in response
to questions from Commissioner Toner at the 2002 hearing on
coordinated and independent expenditures, there was
substantial discussion of coordination of advertising on
"campaign themes."10 Thus, excluding "campaign themes" was
not accidental or an oversight. Moreover, the litigation
spawning the most recent coordination rulemaking did include
disputes over coordination of "helpful themes." See, e.g.,
Reply Br. for FEC at 16, Shays v. FEC, No. 04-5352 (D.C. Cir.
March 25, 2005). However, the resulting orders and opinions
did not address the issue, see, e.g., Shays v. FEC, 337
F. Supp.2d 28 (D.D.C. 2004), aff'd, 414 F.3d 76 (D.C. Cir.
2005), and the Commission did not address it in the revised
regulation. See Coordinated Communication, 71 Fed. Reg.
33190 (2006) (final rules); Coordinated Communication, 70
Fed. Reg. 73946 (2005) (notice of proposed rulemaking).
Second, in considering 11 C.F.R. 109.21(g), the
Commission considered adopting, but chose not to adopt, a
definition of PASO. Cf. Coordinated Communications, 70 Fed.
Reg. at 73951 (proposing a safe harbor for communications not
to be treated as coordinated); Coordinated Communications, 71
Fed. Reg. at 33199 & n.38 (declining to replace the time
frame in the fourth content standard of the previous
coordination regulation, 11 C.F.R. 109.21(c)(4)(ii) (2003),
with a PASO standard); McConnell v. FEC, 540 U.S. 93, 170
n.64 (2003) (opinion of Stevens & O'Connor, JJ., joined by
Souter, Ginsburg & Breyer, JJ.) (summarily holding that PASO
is not unconstitutionally vague). Having just declined to
adopt a regulatory definition, the Commission may not, in the
advisory-opinion process, create new, generic standards
altering that standard. See Statement of Reasons of Vice
Chairman Wold & Comm'rs Elliott, Mason & Sandstrom on the
Audit of Dole for President Comm., Inc., et al. at 4-5
(F.E.C. June 24, 1999), available at
http://www.fec.gov/members/mason/masonstatement5.htm. After
all, the Commission may not use "advisory opinions to
establish rules of conduct." Id. at 2. Instead, the
Commission establishes rules of conduct by rulemaking.
"Rulemaking is not simply the preferred method for filling in
the FECA. It is the required method." Id. at 3. Thus, we
may, in an advisory opinion, conclude that particular
communications PASO, but we may not, validly, declare as a
generic standard, that communications mentioning "campaign
issues" PASO.
Third, the Commission also considered, but did not
adopt, a lobbying exception to the electioneering-
communication regulation predicated in part on reference to
pending official matters. See Coordinated and Independent
Expenditures, 68 Fed. Reg. at 441. This occurred during the
same 2002 rulemaking cycle in which the coordination rule
was adopted in similar form to its current iteration.
Compare 11 C.F.R. 109.21 (2003) with id. (2006). Having
considered and rejected application of the "pending official
matter" standard in a closely related rulemaking,11 we may
not, in an advisory opinion, revive and inject that standard
here.
Given these three factors, if those who insisted on
including the "no mention of campaign issues and pending
official matters" factors as a condition of voting to
approve this advisory opinion, see Open Meeting Agenda Audio
File (F.E.C. June 22, 2006), available at
http://www.fec.gov/agenda/2006/agenda20060622.shtml, are
suggesting that these exclusions are relevant to the
question of whether a communication PASOs a candidate, that
suggestion is interesting. Unfortunately, the bare
reiteration of these factors provides no support for that
point, nor any guidance on how those factors relate to the
PASO standard. In considering a "lobbying" exclusion,
reference to pending official matters was proposed as a
threshold factor in determining that a communication was not
promoting or attacking a candidate. While the Commission
did not adopt that proposal, see Coordinated and Independent
Expenditures, 68 Fed. Reg. at 441, it ran directly counter
to the suggestion that might be gleaned from reading the
current opinion as it could be read, i.e., that reference to
pending official matters could constitute promoting or
attacking a candidate. The conclusion that could be drawn
from this opinion, that mentioning a pending official matter
constitutes PASO, runs directly counter to the suggestion in
the "lobbying" proposal, that mention of pending official
matters is a threshold requirement for avoiding PASO. This
confusion underlines the fact that the "pending official
matter" category was irrelevant to a proper answer to the
request.
Nevertheless, the phrase "campaign issues" does appear
in a Commission regulation and in advisory opinions.
The regulation concerns voter guides. See 11 C.F.R.
114.4(c)(5) (2003). More specifically, it concerns
corporate or union spending on voter guides discussing
"campaign issues." However, the regulation does not
prohibit the corporate or union spending. Rather, it
permits what might otherwise be prohibited corporate or
union spending provided that, inter alia, the spending is
not coordinated. See id. (i)-(ii)(A). Therefore, the
regulation does not apply to coordinated communications.
Thus, the reference in the regulation to "campaign issues"
has no bearing on the coordination regulation itself, much
less on communications that the coordination regulation
exempts. See, e.g., 11 C.F.R. 109.21(g)(2).
Most references to "campaign issues" in advisory
opinions concern voter guides. Several others address
payment of legal expenses with campaign funds. Two, however,
do address candidate communications in fora provided by
corporations. Both conclude that the mere discussion of
"campaign issues" alone is not sufficient to make payments
for or incident to a candidate's speech a contribution to, or
a prohibited expenditure in connection with, the candidate's
campaign See Advisory Op. 1996-11, 1996 WL 270977, at *5
(F.E.C. May 20, 1996) ("discussion of campaign issues by the
candidate during a campaign necessitates further scrutiny to
determine campaign-relatedness"), available at
http://ao.nictusa.com/ao/no/960011.html; Advisory Op. 1992-6,
1992 WL 51226, at *3 (F.E.C. Feb. 14, 1992) ("discussion of
campaign issues during an election by the candidate
necessitates further scrutiny to determine campaign-
relatedness"), available at
http://ao.nictusa.com/ao/no/920006.html. Thus, to the extent
that advisory opinions dealing with different statutory and
regulatory provisions bear on the current advisory-opinion
request, they suggest that mere discussion of campaign issues
alone does not sweep an activity within Commission
regulations.
Finally, notwithstanding the use of "campaign issues"
at one place in the regulations and in several advisory
opinions, if the phrase in this opinion were read as
establishing a substantive standard defining the reach of
the Federal Election Campaign Act ("FECA"), 2 U.S.C. 431
et seq., or of the PASO standard, we would have grave
reservations about the vagueness of the phrase standing
alone. Cf., e.g., Buckley v. Valeo, 424 U.S. 1, 40-41 &
nn.47-48, 76-77 (1976) (discussing vagueness). In a
permissive section of our regulations on voter guides, the
vagueness is of lesser concern. Vagueness is also of lesser
concern in a standard only triggering further scrutiny. See
Advisory Op. 1996-11, supra; Advisory Op. 1992-6, supra.
Unfortunately, the instant opinion could be read as
excluding messages that refer to campaign issues from the
exemption. Who, after all, is to say what constitutes a
campaign issue? For example, is education a "campaign
issue"? Is Hurricane Katrina? Yet education and disaster
relief are likely subjects of PSAs at issue here.
Since the purpose of advisory opinions is to construe
FECA and regulations, see 2 U.S.C. 437f(a)(1), and because
the "campaign issues" and "pending official matters"
categories do not appear in the relevant portions of the
statute and regulations, including these categories, without
further definition or explanation, is neither appropriate
nor helpful.
September 26, 2006
_______(signed)___________________________
Michael E. Toner
Chairman
_______(signed)____________________________
David M. Mason
Commissioner
_________(signed)___________________________
Hans A. von Spakovsky
Commissioner
_______________________________
1 Not all Commissioners agree that this fact is relevant.
2 The Act and Commission regulations define an
"electioneering communication" as any broadcast, cable, or
satellite communication that (1) refers to a clearly
identified candidate for Federal office; (2) is publicly
distributed within 60 days before a general election or 30
days before a primary election for the office sought by the
candidate referenced in the communication; and (3) in the
case of a Congressional candidate, is targeted to the
relevant electorate. See 2 U.S.C. 434(f)(3)(A)(i); 11 CFR
100.29(a).
3 The revised regulation will take effect on July 10, 2006.
See 71 Fed. Reg. 33190 (June 8, 2006). As you requested, we
are analyzing the proposed PSAs under the revised
regulation.
4 See Advisory Opinion 2003-25 (Weinzapfel) (concluding
that U.S. Senate candidate Evan Bayh's endorsement of
mayoral candidate Jonathan Weinzapfel in an advertisement
did not promote, support, attack, or oppose Senator Bayh).
5 Section 300.65 permits Federal candidates or
officeholders to make a "general solicitation" on behalf of
a 501(c) organization without regard to the Act's amount
limitations or source prohibitions under certain
circumstances. See 11 CFR 300.65(a). Such a "general
solicitation" may be made on behalf of a section 501(c)
organization if (1) the organization does not engage in
activities in connection with an election; or (2) the
organization's principal purpose is not to conduct election
activity and the solicitation is not to obtain funds for
activities in connection with an election. Id. Such a
"general solicitation" may seek unlimited contributions
without regard to the Act's source prohibitions or amount
limitations. Id.
6 The Commission notes that the solicitation exemption set
forth at 11 CFR 109.21(g)(2) applies without regard to when
a communication is made. Even if the proposed
communications were to be made during the "electioneering
communication" period they would not constitute coordinated
communications, although they would be subject to the
restrictions applicable to electioneering communications,
assuming they otherwise satisfied the definition of
"electioneering communication" at 2 U.S.C. 434(f)(3)(A)(i);
11 CFR 100.29(a).
7 For PSAs in future years that feature candidates for
President or Vice President, proposed PSAs that are publicly
distributed either in a particular State more than 120 days
before the featured candidate's primary election in that
State, or after the general election would not be
coordinated communications. See 11 CFR 109.21(c)(4)(ii).
8 The other content standards would not be satisfied
because the proposed PSAs would not be electioneering
communications, would not disseminate, distribute, or
republish campaign materials, and would not expressly
advocate the election or defeat of a clearly identified
Federal candidate. See 11 CFR 109.21(c)(1) through (3).
9 The payment prong would be satisfied because EchoStar
would be paying for the PSAs. The conduct prong would be
satisfied because the candidate would be appearing in the
PSAs. See Advisory Opinion 2003-25 (Weinzapfel). The
Commission has determined that communications that satisfy
the three-pronged coordinated communication test are "for
the purpose of influencing a Federal election." See
11 CFR 109.21(b). Although the Commission considered
replacing the fourth content standard in former 11 CFR
109.21(c)(4) with a standard based on public communications
"made for the purpose of influencing a federal election," it
ultimately declined to do so because it determined that a
bright-line test was more appropriate. See Notice of
Proposed Rulemaking on Coordinated Communications, 70 Fed.
Reg. 73946, 73952 (Dec. 14, 2005); see also Explanation and
Justification for Final Rules on Coordinated Communications,
71 Fed. Reg. at 33200. Thus, any communications that meet
the coordinated communication test are, by definition, "for
the purpose of influencing an election."
10 See, e.g., 2 Hearing on Proposed Rulemaking on Coordinated
& Independent Expenditures 21-22, 25-26 (F.E.C. Oct. 23-24,
2002); 1 id. 214-15, 231-32.
11 Electioneering communications are a content standard in
the coordination regulation, see 11 C.F.R. 109.21(c)(1), and
the statutory limit on our electioneering-communication
exemption authority is the same PASO standard used in 11
C.F.R. 109.21(g)(2). See 2 U.S.C. 434(f)(3)(B)(iv)
(2004) (citing 2 U.S.C. 431(20)(A)(iii) (2002) (referring
to "a public communication that refers to a clearly
identified candidate for [f]ederal office .. and that
[PASOs] a candidate for that office"). "Public
communication" is defined in 2 U.S.C. 431(22) and 11
C.F.R. 100.26 (2006). This definition uses the terms
"mass mailing" and "telephone bank." "Mass mailing" is
defined in 2 U.S.C. 431(23) and 11 C.F.R. 100.27 (2002),
and "telephone bank" is defined in 2 U.S.C. 431(24) and 11
C.F.R. 100.28 (2002).