AO 2005-18: Candidate may host radio program
Congressman Silvestre Reyes may use campaign funds to finance a weekly radio program discussing Congressional, campaign and local issues. While the program must include a disclaimer indicating that it was paid for by the campaign, other Members of Congress who appear as guests on the program would not need to issue separate disclaimers, nor would their appearance constitute an in-kind contribution from the Reyes campaign.
Background
The Reyes Committee, Inc. (“the Committee”) intends to purchase time on a radio station for a weekly 30-minute Spanish-language program hosted by Congressman Reyes. The program will air in the Congressman’s district throughout the 2006 primary season. Other Members of Congress, who do not represent districts within the radio station’s listening area, may participate in the program, but the program will not advocate those Members’ reelection.
Analysis
Under the Federal Election Campaign Act (the Act) and FEC regulations, campaigns have wide discretion over how they spend their funds, so long as funds are not converted to personal use. 11 CFR 113.2. The regulations specifically identify campaign and officeholder expenses as permissible uses of committee funds. Since Congressman Reyes’ radio program will address Congressional, campaign and local issues, the Committee’s payments fall within both of those permissible expense categories. The Committee will pay the radio station the prevailing commercially reasonable rate for airtime. Were it to pay less than that, the amount of the discount would represent an in-kind contribution from the incorporated station, prohibited under 2 U.S.C. §441b.
A radio program paid for by a congressional candidate’s committee on which other Members of Congress running for reelection appear as guests could constitute a coordinated communication, and therefore would be an in-kind contribution to those Members under 11 CFR 109.21. To determine whether a communication is coordinated, the Commission applies a three-part test that examines: 1) who paid for the communication; 2) the content of the communication; and 3) the conduct of those involved. Only communications that satisfy all three parts are considered coordinated. In this case, the communication does not satisfy the second part—the content test. To satisfy the content test a communication must be either an electioneering communication, a republication of campaign materials, an express advocacy message or a public communication disseminated to the relevant electorate within 120 days of the election.
The broadcasts would not qualify as electioneering communications because the Committee’s payments would be reported as expenditures and, as such, would be exempt under 11 CFR 100.29(c)(3). The program also would not republish campaign materials or expressly advocate the election or defeat of a clearly identified candidate. Lastly, because the station’s listening area is not in the jurisdiction of the other Members of Congress, it would not reach the relevant electorate. Therefore it does not satisfy the “120 public communication” content standard.
As a public communication paid for by the Committee and authorized by Mr. Reyes, each broadcast will require a disclaimer identifying the Committee as the sponsor. 11 CFR 110.11. Additionally, Congressman Reyes must voice a disclaimer that identifies him and the office he seeks, and indicates that he approved the communication. As noted above, other Members of Congress who may appear on the program are not required to make a disclaimer, because they are not paying for or authorizing the broadcast.
Concurring opinion
Commissioners Scott Thomas, Michael Toner, David Mason, Danny McDonald and Ellen Weintraub issued a concurring opinion on December 2, 2005.
Date issued: November 18, 2005; Length: 6 pages.