Federal Election Commission Main Page
October 17, 2003
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2003-25
Neil Reiff, Esq.
Sandler, Reiff & Young, P.C.
50 E Street, S.E.
Suite 300
Washington, D.C. 20003
Dear Mr. Reiff:
This refers to your letter dated August 7, 2003, as
supplemented by your letters and e-mails dated August 19 and
22, 2003, and September 4, 2003, on behalf of Indiana State
Representative Jonathan Weinzapfel and the Weinzapfel for
Mayor Committee ("the Weinzapfel Committee"), requesting an
advisory opinion concerning the application of the Federal
Election Campaign Act of 1971, as amended ("the Act"), and
Commission regulations to advertisements to be run by the
Weinzapfel Committee that will feature U.S. Senator Evan
Bayh's endorsement of Mr. Weinzapfel for Mayor of
Evansville, Indiana.
Background
Mr. Weinzapfel is currently a member of the Indiana
House of Representatives. He is the Democratic nominee in
the November 3, 2003 general election for Mayor of
Evansville, Indiana. Mr. Weinzapfel has established a
campaign committee under Indiana law, the Weinzapfel
Committee. You state that, under Indiana law, the committee
is permitted to accept donations from individuals and
Indiana political committees that are not amount-limited.
The Committee may also accept limited donations from
corporations and labor organizations. Indiana Code 3-9-2-
4(7).
Senator Bayh is currently a candidate for re-election
in 2004. He has designated the Evan Bayh Committee as his
principal campaign committee. The primary election for the
office Senator Bayh currently holds is scheduled to take
place on May 4, 2004.
Wishing to capitalize on Senator Bayh's name
recognition and popularity in Evansville, the Weinzapfel
Committee seeks to produce and pay for a television
advertisement featuring the Senator. You state that the
advertisement will not solicit donations to the Weinzapfel
or Bayh campaigns, nor will it include any campaign
materials prepared by Senator Bayh or his campaign, or
agents of either. You further indicate that, other than
Senator Bayh's appearance, neither Senator Bayh, his agents,
or his committees will prepare any materials for use in the
advertisement or provide campaign materials to the
Weinzapfel campaign. The Weinzapfel Committee does not
expect that any conduct undertaken in connection with the
advertisement will satisfy any of the coordination conduct
standards set forth at 11 CFR 109.21(d). You assume,
however, that Senator Bayh or his representative will review
the final script "for appropriateness" in advance of the
Senator's appearance in the advertisement.
You state that the Weinzapfel Committee intends to
broadcast this advertisement in October and early November
of this year. In this context, you have provided the script
and storyboard for the television broadcast advertisement
featuring Senator Bayh endorsing Mr. Weinzapfel for Mayor.
You add that no other communication by or regarding Senator
Bayh (i.e., no on-screen graphics or other communicative
content such as a sign in the background) will be included.
Also, no speaker other than Senator Bayh will be heard in
the advertisement. However, you note that Senator Bayh will
have an opportunity to review the script of the
advertisement prior to the airing of the advertisment.
The advertisement would appear as follows:
Weinzapfel for Mayor
"COMMITTED" (TV / 30 seconds)
Scene 1: [The screen consists of an image of Senator Bayh
in front of a solid blue background with part of an American
flag behind his right shoulder. The words "Senator Evan
Bayh" appear in white in the lower right corner.]
Sen. Bayh: Hi. I'm Evan Bayh. Over the past few
years, I've come to know Jonathan Weinzapfel
very well.
Scene 2: [The screen consists of an image of Mr.
Weinzapfel, pointing offscreen. Mr. Weinzapfel is
accompanied by two men wearing hard hats, and a construction
crane and building are visible in the background.]
Sen. Bayh: We've worked together . . . .
Scene 3: [The screen consists of an image of Senator Bayh
in front of a solid blue background with part of an American
flag behind his right shoulder.]
Sen. Bayh: And I've seen first-hand how committed
he is to making Evansville a better city.
Scene 4: [The screen consists of an image of Mr. Weinzapfel
outdoors with three people and a tree in the background.
The words "Working to cut taxes" appear in the lower right
corner.]
Sen. Bayh: From working to cut taxes . . .
Scene 5: [The screen consists of images of a girl and Mr.
Weinzapfel looking off screen. The words "Protect kids from
drugs" appear in the lower portion of the screen.]
Sen. Bayh: . . . to passing a law that protects
our kids from drugs . . .
Scene 6: [The screen consists of an image of Mr. Weinzapfel
pointing towards construction girders while a man with a
hard hat looks on.]
Sen. Bayh: . . . . Jonathan Weinzapfel knows how
to get the job done.
Scene 7: [The screen consists of an image of Senator Bayh
in front of a solid blue background with part of an American
flag behind his right shoulder.]
Sen. Bayh: He's got a bipartisan, common-sense way
of solving problems.
Scene 8: [The screen consists of an image of Senator Bayh
in front of a solid blue background with part of an American
flag behind his right shoulder. The words "Weinzapfel.
Mayor." appear in the lower right corner.]
Sen. Bayh: He cares about what really matters to
people. And he's exactly the kind of Mayor
Evansville needs.
Legal Analysis and Conclusions
Question 1. May the Weinzapfel Committee use funds that
comply with Indiana law but that do not comply with the
amount limitations, source prohibitions, and reporting
requirements of the Act to pay for the production and airing
of the "Committed" advertisement, which features Senator
Evan Bayh's endorsement of Jonathan Weinzapfel for Mayor of
Evansville, Indiana?
As set forth below, the Weinzapfel Committee may use
non-federal funds to pay for the "Committed" advertisement
because the "Committed" advertisement does not promote,
support, attack, or oppose a clearly identified candidate
for Federal office within the meaning of 2 U.S.C.
431(20)(A)(iii) and 441i(f), and 11 CFR 100.24(b)(3).
On November 6, 2002, the Bipartisan Campaign Reform Act
of 2002 (Pub. L. 107-155 (Mar. 27, 2002)) ("BCRA") took
effect. Under the Act, as amended by BCRA, a public
communication1 that clearly identifies2 a Federal candidate,
and that "promotes, supports, attacks, or opposes"3 a
Federal candidate, constitutes "federal election activity"
(FEA), whether or not the communication expressly advocates
a vote for or against a Federal candidate, and regardless of
when the public communication is broadcast, distributed, or
otherwise publicly disseminated. 2 U.S.C. 431(20)(A)(iii);
11 CFR
100.24(b)(3).4
Candidates for State or local office and individuals
holding State or local office must spend only Federal funds
for a "public communication that refers to a clearly
identified candidate for Federal office (regardless of
whether a candidate for State or local office is also
mentioned or identified), and that promotes or supports any
candidate for that Federal office, or attacks or opposes any
candidate for that Federal office (regardless of whether the
communication expressly advocates a vote for or against a
candidate)."
11 CFR 300.71. Non-Federal funds, that is, funds that do
not comply with the limitations, prohibitions, and reporting
requirements of the Act, may not be spent for such an
advertisement. 2 U.S.C. 441i(f). A State or local
candidate, or a State or local officeholder, may spend non-
Federal funds for a public communication in connection with
an election for State or local office that refers to a
clearly identified Federal candidate so long as the
communication does not promote, support, attack, or oppose
any candidate for Federal office. 2 U.S.C. 441i(f)(2); 11
CFR 300.72.
The "Committed" advertisement, as contemplated by the
Weinzapfel Committee, qualifies as a "public communication"
because it will be broadcast via television to the general
public. 11 CFR 100.26. "Committed" will clearly identify
Senator Bayh, a Federal candidate. 2 U.S.C. 431(18) and 11
CFR 100.17. Thus, the critical question (under section
441i(f)) is whether the "Committed" advertisement promotes,
supports, attacks, or opposes Senator Bayh.
The Commission concludes that it does not. Under the
plain language of the FECA, the mere identification of an
individual who is a Federal candidate does not automatically
promote, support, attack, or oppose that candidate.
Sections 431(20)(A)(iii) and 441i(f) expressly set forth
separate requirements that a communication must "refer to a
clearly identified candidate" and "promote, support, attack,
or oppose" that candidate in order to constitute Federal
election activity. See also, 11 CFR 100.24(b)(3), 300.71,
and 300.72. It is a settled rule of statutory construction
that each word and phrase in a statute is intended to have
"particular, nonsuperfluous meaning." Bailey v. United
States, 516 U.S. 137, 146 (1995).
Congress, in passing BCRA, specifically contemplated
communications paid for by a State or local candidate and
referring to a Federal candidate's endorsement of a State or
local candidate. One of BCRA's principal sponsors, Senator
Feingold, explained that the relevant BCRA provisions would
not prohibit "spending non-Federal money to run
advertisements that mention that [state candidates] have
been endorsed by a Federal candidate or say that they
identify with a position of a named Federal candidate, so
long as those advertisements do not support, attack, promote
or oppose the Federal candidate." 148 Cong. Rec. S2143
(daily ed. Mar. 20, 2002). Based on the facts you have
presented, the "Committed" advertisement falls into this
category; the advertisement endorses the candidacy of Mr.
Weinzapfel for Mayor of Evansville and not Senator Bayh for
the U.S. Senate, and does not promote, support, attack, or
oppose any Federal candidate. Furthermore, because the
"Committed" advertisement does not promote, support, attack,
or oppose a candidate for Federal office, the Weinzapfel
Committee may use non-federal funds to finance the
advertisement.
Question 2. Does the Weinzapfel Committee's payment for the
"Committed" advertisement constitute an in-kind contribution
to Senator Bayh?
The Commission concludes that the payment for
"Committed" is not an in-kind contribution to Senator Bayh.
Congress has defined one type of in-kind contribution as an
expenditure made by any person "in cooperation,
consultation, or concert, with, or at the request or
suggestion of" a candidate. 2 U.S.C. 441a(a)(7)(B)(i).
Congress expanded this definition in BCRA to include
expenditures made by any person "in cooperation,
consultation, or concert, with, or at the request or
suggestion of" a political party committee or its agents. 2
U.S.C. 441a(a)(7)(B)(ii). Other than this expansion, this
definition of a contribution did not change.
Congress did, however, direct the Commission to replace
its pre-BCRA regulations on "coordinated general public
political communications" (see former
11 CFR 100.23) with new regulations to provide further
guidance regarding 2 U.S.C. 441a(a)(7)(B)(i) and (ii)
contributions in the context of communications. The
Commission's "coordinated communication" regulation at 11
CFR 109.21 implements this directive by setting forth a
three-pronged test: 1) the communication must be paid for
by a person other than a Federal candidate, a candidate's
authorized committee, or political party committee, or any
agent of any of the foregoing; 2) one or more of the four
content standards set forth in 11 CFR 109.21(c) must be
satisfied; and 3) one or more of the five conduct standards
set forth in 11 CFR 109l(d) must be satisfied. A payment
for a communication satisfying all three prongs "satisfies
the statutory requirements for an expenditure in the
specific context of coordinated communications, and thereby
constitutes a contribution under 2 U.S.C. 441a(a)(7)(B)(i)
and (ii)." Final Rules and Explanation and Justification
for Coordinated and Independent Expenditures, 68 Fed.
Register 421, 427 (Jan. 30, 2003). If one or more of the
three prongs are not met, then the communication is not a
coordinated communication. If "Committed" satisfies all
three prongs with respect to Senator Bayh, then the payment
for "Committed" would be an in-kind contribution to Senator
Bayh. 11 CFR 109.21(b)(1).
The Weinzapfel Committee is not a Federal candidate, so
its payment for "Committed" would satisfy the "payment
source" prong. 11 CFR 109.21(a)(1).
The Commission further concludes that, despite your
assertion to the contrary, "Committed" would satisfy the
conduct standard in 11 CFR 109.21(d) in light of Senator
Bayh's appearance in the "Committed" advertisement. The
conduct standard is satisfied if, among other things, the
Federal candidate, the candidate's authorized committee, or
one of their agents is "materially involved" in a decision
regarding one or more listed aspects of the creation,
production, or distribution of a communication. 11 CFR
109.21(d)(2). Given the importance of and potential
campaign implications for each public appearance by a
Federal candidate, it is highly implausible that a Federal
candidate would appear in a communication without being
materially involved in one or more of the listed decisions
regarding the communication. See 11 CFR 109.21(d)(2).5 In
fact, your request explicitly assumes that Senator Bayh or
his representative will review the final script in advance
"for appropriateness." To suggest that a candidate may
personally approve the content of an advertisement without
satisfying the conduct standard in 109.21(d)(2) would be to
obviate that section of the regulations.
The Commission concludes, however, that the "Committed"
advertisement does not meet the content standard. A
communication will satisfy the content standard if the
communication: 1) is an electioneering communication as
defined in 11 CFR 100.29; 2) disseminates, distributes, or
republishes, in whole or in part, campaign materials
prepared by a Federal candidate, the candidate's authorized
committee, or their agents; 3) expressly advocates the
election or defeat of a clearly identified candidate for
Federal office; or 4) is a public communication, as defined
in 11 CFR 100.26, that refers to a clearly identified
candidate for Federal office, is publicly distributed or
disseminated within one hundred and twenty days of an
election for Federal office, and is directed to voters
within the jurisdiction of the clearly identified candidate.
11 CFR 109.21(c)(1) through (4). "Committed" does not
appear to expressly advocate the election or defeat of
Senator Bayh or any other Federal candidate. You have
indicated that "Committed" will not contain any campaign
materials prepared by Senator Bayh or his campaign, and
there is nothing portrayed in the storyboard to suggest
otherwise.6 Furthermore, "Committed" is not an
"electioneering communication," as defined in 11 CFR 100.29,
because you state in your request that the communication
will not be broadcast after November 2003, many months
before the Federal elections in Indiana. Likewise,
"Committed" cannot satisfy the remaining content standard
because it will not be publicly distributed or disseminated
within one hundred and twenty days of a Federal election.
Thus, "Committed" is not a coordinated communication within
the meaning of 11 CFR 109.21 and no contribution would
result under 2 U.S.C. 441a(a)(7)(B)(i) or 11 CFR 109.21(b).
To the extent that the contribution analysis in Advisory
Opinion 1982-56 is inconsistent, it is superseded.
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 opinion, then the
requestor may not rely on that conclusion as support for its
proposed activity.
The Commission notes that this advisory opinion
analyzes the Act, as amended by BCRA, and Commission
regulations, including those promulgated to implement the
BCRA amendments, as they pertain to your proposed
activities. On May 2, 2003, a three-judge panel of the
United States District Court for the District of Columbia
ruled that a number of BCRA provisions are unconstitutional
and issued an order enjoining the enforcement, execution, or
other application of those provisions. McConnell v. FEC,
251 F.Supp. 2d 176 (D.D.C. 2003); prob. juris. noted, 123
S.Ct. 2268 (U.S. 2003). Subsequently, the district court
stayed its order and injunction in McConnell v. FEC, 253 F.
Supp. 2d 18 (D.D.C. 2003), pending review by the Supreme
Court. The Supreme Court heard oral arguments on McConnell
v. FEC on September 8, 2003. The Commission cautions that
the legal analysis in this advisory opinion may be affected
by the eventual decision of the Supreme Court.
Sincerely,
(signed)
Bradley A. Smith
Vice Chairman
_______________________________
1 "Public communication" is defined in 2 U.S.C. 431(22) as
"a communication by means of any broadcast, cable, or
satellite communication, newspaper, magazine, outdoor
advertising facility, mass mailing or telephone bank to the
general public, or any other form of general public
political advertising." Under
11 CFR 100.26, the term public communication shall not
include communications over the Internet.
2 The term "clearly identified" means "the candidate's
name, nickname, photograph, or drawing appears, or the
identity of the candidate is otherwise apparent through an
unambiguous reference such as `the President,' `your
Congressman,' or `the incumbent,' or through an unambiguous
reference to his or her status as a candidate such as `the
Democratic presidential nominee' or `the Republican
candidate for Senate in the State of Georgia.'" 11 CFR
100.17.
3 Congress did not define the phrase "promotes, supports,
attacks, or opposes."
4 Such public communications constitute one type of
"federal election activity;" the others are not relevant
here. See 11 CFR 100.24(b)(1), (2), and (4).
5 It is also likely that the candidate or his or her agent
would engage in one or more substantial discussions with the
person paying for that communication. 11 CFR 109.21(d)(3).
6 The Commission also notes that the absence of any campaign
material prepared or provided by Senator Bayh, his
authorized committee, or their agents, precludes a
contribution under 11 CFR 109.23.