Federal Election Commission Main Page
FEDERAL ELECTION COMMISSION
Washington, DC 20463
November 2, 2006
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2006-29
Mr. Jason Vasquez
Office of the Honorable Mary Bono
405 Cannon House Office Building
Washington, D.C. 20515
Dear Mr. Vasquez:
We are responding to your advisory opinion request on
behalf of Representative Mary Bono, concerning the
application of the Federal Election Campaign Act of 1971, as
amended (the "Act"), and Commission regulations to a
proposed appearance by Representative Bono in a televised
tourism infomercial to be aired beginning in October, 2006,
and running for eight months.
The Commission concludes that Representative Bono's
appearance in the infomercial would not result in the making
of an in-kind contribution to Representative Bono or her
authorized committee.
Background
The facts presented in this advisory opinion are based
on your letter received on August 31, 2006, and on your
phone conversation with Commission staff on September 7,
2006.
Representative Bono serves the 45th Congressional
District of California. She is currently a candidate for
reelection to the House of Representatives in the November
7, 2006 general election.
The Palm Springs Desert Resorts Convention and Visitors
Authority (the "CVA") is an unincorporated organization that
promotes tourism from Los Angeles and Orange Counties. The
CVA recently invited Representative Bono to become its
spokesperson and host of a 30-minute tourism infomercial.
The CVA infomercial campaign is scheduled to begin in
October, 2006, and to continue for eight months.
The CVA would not broadcast its infomercial featuring
Representative Bono in the 45th Congressional District of
California. Representative Bono would not receive any
financial compensation for her role as the CVA spokesperson.
Furthermore, the CVA infomercial would not disseminate
Representative Bono's campaign materials or expressly
advocate the election or defeat of Representative Bono or of
any other clearly identified Federal candidate.
Question Presented
May Representative Bono appear in the CVA tourism
infomercial under the Act and Commission regulations?
Legal Analysis and Conclusions
Yes, Representative Bono may appear in the CVA
infomercial under the Act and Commission regulations.
The Act and Commission regulations limit the amount a
person may contribute to any candidate, a candidate's
authorized political committees, or their agents with
respect to any election for Federal office. See 2 U.S.C.
441a(a)(1)(A); 11 CFR 110.1(b)(1). These limitations apply
to contributions by unincorporated entities, such as the
CVA.1
Under the Act and Commission regulations, the terms
"contribution" and "expenditure" include any gift of money
or "anything of value" made by any person for the purpose of
influencing a Federal election. See 2 U.S.C. 431(8)(A)(i)
and (9)(A)(i);
11 CFR 100.52(a) and 100.111(a). The phrase "anything of
value" includes all in-kind contributions. See 11 CFR
100.52(d)(1) and 100.111(e)(1). In-kind contributions
include expenditures made by any person "in cooperation,
consultation, or concert, with, or at the request or
suggestion of" a candidate, a candidate's authorized
committees, or their agents. 2 U.S.C. 441a(a)(7)(B)(i).
Commission regulations specify a three-prong test to
determine whether a payment for a communication becomes an
in-kind contribution as a result of coordination between the
person making the payment and a candidate.2 See 11 CFR
109.21(a)(1)-(3). Under the first prong of the coordinated
communication test, the communication must be paid for by a
person other than a candidate, a candidate's authorized
committee, a political party committee, or agents of any of
the foregoing. See 11 CFR 109.21(a)(1). The CVA
infomercial would satisfy this first prong of the
coordinated communication test because the infomercial would
be paid for by the CVA.
Under the second prong of the coordinated communication
test, the communication must satisfy one of the four content
standards set forth in 11 CFR 109.21(c). Representative
Bono's appearance in the CVA infomercial would not satisfy
any of the content standards in this second prong of the
coordinated communication test. The infomercial would not
be an electioneering communication under 11 CFR 100.293
because it would not be received by 50,000 or more persons
in Representative Bono's Congressional District. See 11 CFR
109.21(c)(1). Additionally, the CVA infomercial would not
disseminate, distribute, or republish, in whole or in part,
campaign materials prepared by Representative Bono, her
authorized committee, or their agents. See 11 CFR
109.21(c)(2). Furthermore, the infomercial would not
expressly advocate the election or defeat of Representative
Bono or any other Federal candidate. See 11 CFR
109.21(c)(3). Finally, the CVA would not broadcast the
infomercial in Representative Bono's Congressional District
within 90 days of the general election. See 11 CFR
109.21(c)(4).
Under the third prong of the coordinated communication
test, the communication must satisfy one of the five conduct
standards set forth in 11 CFR 109.21(d). The Commission
need not reach this prong of the analysis because
Representative Bono's appearance in the CVA infomercial
would not satisfy the second prong set forth in
11 CFR 109.21(c).
Because the CVA infomercial would not be a coordinated
communication, it would not be an in-kind contribution to
Representative Bono, her authorized committee, or their
agents. Thus, Representative Bono's appearance in the CVA
infomercial would not result in the CVA making an in-kind
contribution to Representative Bono under the Act and
Commission regulations.
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
_______________________________
1 The Commission assumes, for purposes of this advisory
opinion, that the cost of the infomercial in which
Representative Bono has been invited to appear would exceed
the $2,100 limit that applies to contributions from the CVA
to candidates for the 2006 general election. See 11 CFR
110.1(b)(1).
2 The Commission notes that the coordination regulations at
11 CFR 109.21 are the subject of pending litigation in Shays
v. FEC, Civil Action No. 06-1247 (D.D.C. filed July 11,
2006). The Commission's current regulations remain in full
force and effect pending the outcome of this proceeding.
3 The Act and Commission regulations define "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; and (3) in the case of a candidate for the
House of Representatives, is targeted to the relevant
electorate. See 2 U.S.C. 434(f)(3)(A)(i); 11 CFR 100.29(a).
In the case of a candidate for the House of Representatives,
"targeted to the relevant electorate" means that the
communication can be received by 50,000 or more persons in
the district the candidate seeks to represent. See 11 CFR
100.29(b)(5)(i).