AO 2006-29: Candidate’s appearance in an infomercial is not a contribution

A candidate’s appearance in an infomercial that fails to satisfy all three prongs of the Commission’s coordinated communication test is not a coordinated communication and thus does not result in an in-kind contribution.

Background

The Palm Springs Desert Resorts Convention and Visitors Authority (CVA) is an unincorporated entity that promotes tourism to the region from nearby counties. CVA invited Representative Mary Bono, a candidate in the 2006 general election, to be its spokesperson and host a televised tourism infomercial. CVA stated that it would not run the infomercial within Representative Bono’s congressional district nor would the infomercial distribute any of Representative Bono’s campaign materials. Additionally, CVA stated that the infomercial would not expressly advocate the election or defeat of Representative Bono or any other Federal candidate.

Analysis

Under the Act and Commission regulations, the definitions of contribution and expenditure include any gift of money or “anything of value” given 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 in-kind contributions, which in turn include expenditures made in coordination with a candidate, a candidate’s committee, or their agents. See 2 U.S.C. 441a(a)(7)(B)(1).

The Commission has a three-prong test to determine whether a communication is coordinated and thus an in-kind contribution to a candidate. See 11 CFR 109.21(a). A communication is coordinated only if it satisfies all three prongs. The first prong requires that the communication be paid for by someone other than the candidate, the candidate’s committee, a political party, or their agents. 11 CFR 109.21(a)(1). The second prong examines the content of the communication. This prong is satisfied if the communication qualifies as an electioneering communication or is a public communication that republishes or distributes campaign materials prepared by the candidate, expressly advocates the election or defeat of a federal candidate, or refers to a House or Senate candidate and is distributed in the candidate’s Congressional District within 90 days of an election. See 11 CFR 109.21(c). The third prong analyzes the interaction between the candidate, the candidate’s committee, political party committee, or their agents and the person paying for the communication. See 11 CFR 109.21(d).

CVA’s infomercial would satisfy the first prong of the coordination test because the infomercial would be paid for by the CVA. However, it would not fulfill any of the content standards, as it is not an electioneering communication as defined in 11 CFR 109.29, it will not republish Representative Bono’s campaign materials, it will not expressly advocate the election or defeat of any federal candidate, and it will not be aired in Representative Bono’s jurisdiction within 90 days before the general election. Since the infomercial failed to meet the second prong of the coordination test and thus is not a coordinated communication, the Commission did not reach the third prong of the coordination test.

Date: November 2, 2006; Length: 5 pages