AO 2012-19: Electioneering communication query hinges on clearly identified candidate

The Commission determined that two of the eight television advertisements proposed by the American Future Fund (AFF) meet the definition of electioneering communication and one does not, but could not reach a four-vote majority with respect to the five remaining ads.

The Commission’s decision hinged on whether each ad contained a reference to a clearly identified federal candidate, as AFF acknowledged that its proposed ads otherwise met the definition of electioneering communication.

Background

The Act and Commission regulations define an “electioneering communication” as any broadcast, cable, or satellite communication that (1) refers to a clearly identified federal candidate; (2) is publicly distributed within 30 days before a primary election or a convention or caucus of a political party or 60 days before a general election; and (3) is targeted to the relevant electorate. 2 U.S.C. § 434(f)(3)(A)(i); 11 CFR 100.29(a).

AFF plans to produce and distribute a series of eight broadcast television advertisements concerning various political issues within 30 days of upcoming primary elections and within 60 days of the November general election. The ads will air on both local television stations and national cable outlets. While AFF acknowledged that its proposed ads meet the last two parts of the definition of an electioneering communication, it asked the Commission whether the scripts for the proposed advertisements contained references to a “clearly identified federal candidate.”  

Analysis

Under Commission regulations, a clearly identified candidate is one whose "name, nickname, photograph, or drawing appears, or whose identity is otherwise apparent through an unambiguous reference such as ‘the President,’ ‘your Congressman,’ or ‘the incumbent,’ or through an unambiguous reference to his or her status as a candidate such as ‘the Democratic presidential nominee’ or ‘the Republican candidate for Senate in the State of Georgia.’” 11 CFR 100.29(b)(2).

Advertisements including reference to a clearly identified candidate

AFF’s Proposed Advertisement 7 refers to the Patient Protection and Affordable Care Act (the Affordable Care Act) as “Obamacare,” with four textual references and two audio, voice-over references. These six proposed references in Advertisement 7 to “Obamacare” are references to President Barack Obama, a clearly identified candidate for federal office. 11 CFR 100.29(b)(2). 

Likewise, proposed Advertisement 8 compares 2006 Massachusetts state healthcare legislation with the Affordable Care Act and includes five references to current presidential candidate and former Governor Mitt Romney by referring to the two pieces of legislation respectively as “Romneycare” and “the national healthcare law,” and concluding by characterizing “National healthcare” as “Romneycare’s evil twin.” The “Romneycare” references clearly identify Mr. Romney.

The fact that Advertisements 7 and 8 mention the candidates’ names in the context of discussing legislation does not exempt the ads from the requirements for electioneering communications. Under Commission regulations, the name of a candidate, even in the context of a bill or law, is nonetheless a reference to that candidate. Thus, Advertisements 7 and 8 both fit the definition of an electioneering communication because they each include multiple references to a clearly identified federal candidate, and also fit the timing and audience requirements in the definition. See 11 CFR 100.29(a).

Advertisement not including a reference to a clearly identified candidate

Proposed Advertisement 4 discusses “a proposed requirement forcing ‘religious institutions to pay for abortion-causing drugs.” It concludes with an announcer instructing viewers to “call Secretary Sebelius” and “tell her it’s wrong … to trample the most basic American right.” Although the advertisement mentions the Secretary for the Department of Health and Human Services, she is not a candidate for federal office, nor does the advertisement contain any audio or visual reference to any candidate for federal office. Without a reference to a clearly identified candidate, Advertisement 4 does not fit the definition of an electioneering communication. 11 CFR 100.29(a) and (b)(2).

With respect to proposed Advertisements 1, 2, 3, 5 and 6—some which include the recorded voice of President Obama, references to the White House and the administration—the Commission could not approve a response by the required four affirmative votes.

Date issued: June 13, 2012; Length: 5 pages.

Resources:

• Advisory opinion 2012-19 [PDF; 12 pages]
• Commission discussion of AOR 2012-19