AO 2005-07: Certain commentaries and editorials are prohibited corporate contributions if coordinated

Bona fide news stories concerning federal elections are exempt from the definition of “contribution” and “expenditure,” even when published by a media corporation co-owned by a federal candidate. The media corporation may also publish opinion columns written by the federal candidate provided that those columns are not “coordinated communications.” In addition, the federal candidate may purchase advertising space from the media corporation provided the candidate’s committee is charged the same standard rate charged to other advertisers.

Background

Andy Mayberry, a candidate for the U.S. House of Representatives for Arkansas’ 2nd District, co-owns Spirit Publications, Inc., an incorporated media company. Spirit Publications publishes and distributes The East Ender, a local newspaper that carries opinion columns and bona fide news stories, and the Spirit Magazine, a monthly publication. The circulation area of both periodicals is within Arkansas’ 2nd congressional district. Mr. Mayberry is a regular opinion columnist for both periodicals.

Press exemption

The Federal Election Campaign Act (the Act) and Commission regulations prohibit corporations from making any contribution or expenditure in connection with a federal election. 2 U.S.C. §441b(a); 11 CFR 114.1(a), 114.2(b)(1) and (b)(2). However, the rules exempt from the definitions of “contribution” and “expenditure” “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication.” 11 CFR 100.73 and 100.132. This so-called press exemption applies to the costs of news stories that are bona fide news accounts, subject to certain conditions, even if the newspaper or magazine is owned or controlled by a candidate. Thus, the expenses of publishing and distributing editions of the East Ender containing bona fide news stories about federal elections and candidates are not contributions or expenditures because the news stories are part of a general pattern of campaign-related news accounts that give reasonably equal coverage to all opposing candidates in the circulation area. 11 CFR 100.73 and 100.132.

The press exemption does not apply, however, to commentaries and editorials that are distributed through facilities that are owned or controlled by a political party, political committee or candidate. 2 U.S.C. §431(9)(B)(i); 11 CFR 100.73 and 100.132. Therefore, any opinion columns written by Mr. Mayberry that are published and distributed through Spirit Publications are not exempt from the definitions of “contribution” or “expenditure” under the press or media exemption.

Coordinated communications

Lacking an exemption, the Commission next considered whether publishing the columns would result in contributions from Spirit to the Mayberry campaign and thus be prohibited.

Under the Act and Commission regulations, a communication that is coordinated with a candidate or party is considered an in-kind contribution by the person paying for the communication. 2 U.S.C. §441a(a)(7)(B)(i); 11 CFR 109.21(b). Commission regulations provide for a three-prong test to determine whether a communication is a coordinated communication. Thetest considers whether the communication:

• Is paid for by a person other than a federal candidate, a candidate’s authorized committee, a political party committee or an agent of any of these;
• Satisfies one or more of six conduct standards (11 CFR 109.21(d)); and
• Satisfies one or more of four content standards (11 CFR 109.21(c)).

See 11 CFR 109.21(a) and (b)(1).

Opinion columns authored by Mr. Mayberry satisfy the payment prong of the test because, although Mr. Mayberry would write the columns, they would be paid for by Spirit Publications. Similarly, because Mr. Mayberry would be the author and editor of the opinion columns at the same time that he is a candidate for federal office, Spirit Publication’s continued publication of Mr. Mayberry’s opinion columns would satisfy the test’s second prong—conduct. The conduct standards focus on issues such as whether the candidate or the candidate’s agents “request or suggest” or are “materially involved” in the making and airing of a communication, or engage in “substantial discussion” about the communication. 11 CFR 109.21(a)(3) and (d)(1) through (3).

His opinion columns may also meet the test’s third prong—content. Four types of communications satisfy the content standard: (1) a public communication that expressly advocates the election or defeat of a clearly identified federal candidate; (2) a public communication that disseminates, distributes or republishes campaign materials; (3) electioneering communications; and (4) a public communication that refers to a political party or clearly identified federal candidate that is disseminated 120 days or fewer before an election and is directed to voters in the candidate’s jurisdiction. 11 CFR 109.21(c).

Mr. Mayberry’s opinion columns constitute public communications, so if any future opinion columns expressly advocate the election or defeat of a clearly identified federal candidate, those columns will satisfy the “express advocacy” content standard in 11 CFR 109.21(c)(3). Similarly, if future opinion columns disseminate, distribute or republish, in whole or in part, campaign materials prepared by Mr. Mayberry or any other federal candidate, or by an agent of either, those columns will satisfy the “republication” content standard in 11 CFR 109.21(c)(2).

Opinion columns that contain a byline with Mr. Mayberry’s name and photograph would meet the “120 day public communication” content standard if they are publicly distributed or disseminated within 120 days of an election for federal office and are directed to voters within his jurisdiction. Conversely, opinion columns that do not bear a byline with Mr. Mayberry’s name or photograph and do not contain any other reference to a clearly identified federal candidate or party would not meet this content standard, regardless of when such columns are publicly distributed or disseminated.

Any editorial or commentary in the periodicals—including the candidate’s opinion column—that satisfies any of the content standards discussed above would be an impermissible in-kind contribution. As such, it would also be an impermissible corporate expenditure. See U.S.C. §441b(b)(2) and 11 CFR 100.111

Payments for ad space

Finally, Mr. Mayberry’s committee may purchase advertising space in The East Ender at the same standard rates that Spirit Publications sells such space to other advertisers, so long as that rate is the usual and normal charge for such advertising, and normal practices for assigning advertising space are followed, and payment terms for the Committee follow normal billing practices. 11 CFR 100.111(e).

AO 2005-07: Date issued: August 18, 2005; Length: 10 pages