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CONCURRING OPINION
VICE CHAIRMAN BRADLEY A. SMITH
AND COMMISSIONERS DAVID M. MASON AND MICHAEL E. TONER
ADVISORY OPINION 2003-25
On October 16, 2003, the Commission issued an advisory
opinion to counsel for Indiana State Representative Jonathan
Weinzapfel.1 We concluded that Weinzapfel, presently a
candidate for Mayor of Evansville, Indiana, could feature
U.S. Senator Evan Bayh as an endorser in campaign
advertisements. The requester sought our opinion in light
of amendments made by the Bipartisan Campaign Reform Act
that prohibit the use of non-federal funds to pay for public
communications that promote, support, attack, or oppose a
clearly identified candidate for federal office.2
Weinzapfel first asked the Commission's advice on
August 7. Over the course of our examination of the
request, the Weinzapfel campaign provided us with
storyboards and scripts for their spot, titled "Committed,"
so we could evaluate the legal status of the proposed
advertisement. We learned that Weinzapfel desired to
feature Senator Bayh on screen before an American flag.
Shots of the candidate would be interspersed with shots of
Senator Bayh giving this testimonial:
Hi. I'm Evan Bayh. Over the past few years, I've
come to know Jonathan Weinzapfel very well. We've
worked together, and I've seen firsthand how
committed he is to making Evansville a better
city. From working to cut taxes to passing a law
that protects our kids from drugs, Jonathan
Weinzapfel knows how to get the job done. He's
got a bipartisan, common-sense way of solving
problems. He cares about what really matters to
people. And he's exactly the kind of mayor
Evansville needs.
Given the law, our task as Commissioners was to determine
whether this "public communication" promoted, supported,
attacked or opposed Senator Bayh. If so, then the
Weinzapfel for Mayor campaign could not pay for it, because
this mayoral committee raised funds in compliance with
Indiana law, but not under federal contribution limits or
source restrictions.
Accordingly, the Commission's consideration of this
Advisory Opinion request required us to meet in open
session, mere weeks before the election, to decide whether
the people of Evansville could hear about Senator Bayh's
endorsement of Jonathan Weinzapfel. The Commission voted 5-
0 that the advertisement could be run.3
We believe this is the only conclusion congruent with
our Constitution's protection of speech from regulation.
Voters should be informed who endorses their candidates. We
do not see any anti-circumvention or anti-corruption
rationale to justify federal censorship of the
advertisement, or federal regulation of the finances of an
Evansville campaign committee. Yet, if the Commission were
to apply the ordinary meaning of the regulatory standard,
conceivably our answer would instead be that this message
does promote and support Senator Bayh. The script does not
merely state that Bayh endorses Weinzapfel, it features him
personally conveying the message. He is placed before an
American flag, which in Evansville probably evokes positive
responses from viewers. He is associated with issues like
cutting taxes, and protecting kids from drugs. Accordingly,
"promote" and "support" must be construed as something
narrower than their ordinary meaning if the law is to
coexist with the First Amendment. 4
Our colleagues, Commissioners Thomas and McDonald,
write separately to describe how the final advisory opinion
issued by the Commission differed from the draft prepared
for us by the Office of General Counsel.5 The Counsel's
draft contained a longer analysis explaining why the
proposed advertisement did not "promote" or "support" Bayh.
It considered whether the communication referred to Bayh as
a candidate for federal office, or his qualifications (it
did not); whether it referred to Bayh's record, positions,
character, or party affiliation (it did not); and whether
the advertisement contained an exhortation to elect
Weinzapfel as mayor of Evansville (it did). We supported
amendments that would excise this additional analysis from
the opinion. While we concurred with the draft's
conclusions, we resisted setting forth standards for
evaluating the regulation that might not be appropriate in
other situations. Rather than release an interpretation
other candidates might feel constrained to follow, we
believe that until federal courts provide controlling First
Amendment analysis of the "promote, support, attack or
oppose" standard, the regulation must speak for itself.6
Moreover, under BCRA, the advertisement could have been
prohibited as an illegal coordinated contribution. But for
our newly enacted coordination regulations, we would be
compelled to conclude that this advertisement was made in
coordination with Senator Bayh, or his representatives or
agents, as it would be made "in cooperation, consultation,
or concert with, or at the request or suggestion of" Senator
Bayh.7 If conduct were the only factor to be considered,
the advertisement would be a coordinated contribution to his
campaign, and would be unlawful because of the Indiana
campaign's "soft money" funding. Our Commission's
regulation, however, requires not only coordinated conduct,
but also certain content before the expenditure is deemed a
contribution to the federal candidate.8 The Weinzapfel
advertisment does not contain express advocacy of Senator
Bayh, is not an electioneering communication for Bayh, does
not republish Bayh campaign material, nor does it feature
Bayh and appear within 120 days of a federal election.
Under the regulation, therefore, it is not a coordinated in-
kind contribution.
Our colleagues' Concurring Opinion expresses their
concern about the "loophole" in the law they believe is
created by the regulation's content standard. These
Commissioners made much the same argument during the
consideration of the regulation, but were not successful in
persuading other Commissioners of the merits of their views.
Their Concurring Opinion suggests that the reader "[i]magine
the attack ads paid for by corporations, unions, and other
well-funded sources that can be orchestrated by the
candidates themselves during that crucial [120-day] period!"9
Without revisiting the debate over the coordination
rulemaking, we suggest the reader instead imagine a
regulatory regime where the merest mention of an individual
who is also a federal candidate (i.e. a Senator of
Congressman) made with some contact from that person's
staff, paid for with nonfederal funds - for instance a
grassroots lobbying message paid for by a wealthy
individual, non-profit, corporation, or labor union - is
illegal.
We are hard-pressed to understand how, under this
statute the Weinzapfel advertisement could run, absent the
Commission's coordination regulation. In any case, both
Commissioners Thomas and McDonald believed that in the
request before the Commission in 2003-25, the local campaign
advertisement should be allowed. We are pleased that the
coordination regulation produces that result.
December 8, 2003
__________________________
Bradley A. Smith
Vice Chairman
__________________________
Michael E. Toner
Commissioner
__________________________
David M. Mason
Commissioner
_______________________________
1 See Federal Election Commission, Minutes of an Open
Meeting (Oct. 16, 2003) at 3-6 (Commissioners Mason,
McDonald, Smith, Thomas and Toner voting affirmatively,
Chair Weintraub recused) ("Minutes").
2 2 U.S.C. 431(20)(a)(iii); 11 C.F.R. 100.24(b)(3).
3 Minutes at 5-6.
4 See NAACP v. Button, 371U.S. 415, 438 (1963) ("Precision
of regulation must be the touchstone" in regulation of First
Amendment protected activity); Thomas v. Collins, 323 U.S.
516, 535 (1945) (effect of vagueness to put "speaker wholly
at the mercy of the varied understanding of his hearers and
consequently of whatever inference may be drawn as to his
intent and meaning").
5 See Concurring Opinion, Advisory Opinion 2003-25 (Thomas,
McDonald) (citing Agenda Document No. 03-75 (Oct. 9, 2003))
("Concurring Opinion").
6 2 U.S.C. 437f(b)(general rules must be issued as
regulations in accord with Section 438(d)). In enacting
BCRA, Congress did not define "promote, support, attack or
oppose." The Commission likewise did not define "promote,
support, attack or oppose" in regulations, and several
commenters during the "soft money" rulemaking, who opposed a
narrower and clearer definition for this phrase, argued that
"promote, support, attack or oppose" required no further
definition. See Comment: Center for Responsive Politics
(May 29, 2002) at 10 ("There is no need for the Commission
to attempt to further define in the regulations the language
adopted by Congress . . ."); Comment of Senators McCain and
Feingold and Reps. Shays and Meehan (May 29, 2002) at 2, 19.
Thus it would be inappropriate to articulate a new
definition in an advisory opinion.
7 See 2 U.S.C. 441a(a)(7)(B)(i).
8 See 109.21(c)(1) - (4).
9 Concurring Opinion at 3 n.2.