AO 2007-34: Federal candidate's endorsement of nonfederal candidate
A federal candidate's appearance on a billboard endorsing a nonfederal candidate is not a coordinated communication and may be paid for with nonfederal funds.
Background
Representative Jesse Jackson, Jr., represents the 2nd District of Illinois in the U.S. House of Representatives and is a candidate for re-election in 2008. The primary election for both federal and state offices will be held February 5, 2008. Representative Jackson proposes to appear on a billboard to endorse a nonfederal candidate for the position of State's Attorney in Cook County, Illinois, in the primary. The billboard would feature Representative Jackson's image and that of the state candidate and would be paid for by the state candidate's campaign using funds that comply with Illinois law but not with the limits and prohibitions of the Federal Election Campaign Act (the Act).
Analysis
The Act and Commission regulations define an in-kind contribution to include an expenditure made by any person "in cooperation, consultation, or concert, with, or at the request or suggestion of" a candidate, a candidate's authorized committees or their agents. 2 U.S.C. §441a(a)(7) (B)(i). A payment for such a communication—called a "coordinated communication"—is an in-kind contribution to the candidate or candidate's authorized committee with whom or which it is coordinated and is subject to the amount limitations and source prohibitions of the Act. 11 CFR 109.21(b). However, a public communication in which a federal candidate endorses another candidate for federal or nonfederal office is exempt from the definition of "coordinated communication" unless the communication promotes, supports, attacks or opposes the endorsing candidate or another candidate who seeks election to the same office as the endorsing candidate. 11 CFR 109.21(g)(1).
While the proposed billboard advertisement is a "public communication," Representative Jackson appears on the billboard only to endorse a nonfederal candidate and the communication only identifies Representative Jackson without additional comment or statement. Previously, the Commission has determined that the mere identification of an individual who is a federal candidate is not in itself tantamount to promoting, supporting, attacking or opposing that candidate. AOs 2007-21, 2006-10 and 2003-25. Thus, in this case the billboard does not promote, support, attack or oppose Representative Jackson or any other federal candidate. Accordingly, the billboard is not a coordinated communication and would not result in an in-kind contribution to Representative Jackson or his authorized committee.
A nonfederal candidate may spend nonfederal 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 and AO 2003-25. In this case, because the billboard does not promote, support, attack or oppose Representative Jackson or any other federal candidate, the billboard may be paid for with nonfederal funds.
AO 2007-34: Date Issued: December 17, 2007; length: 4 pages.