Advisory Opinion 06-07
This Advisory Opinion rescinds Advisory Opinion No. 02-081 and provides guidance on the question of a candidate who asked the Campaign Spending Commission (“Commission”) whether “in-kind” contributions are made by the sponsor of a debate between gubernatorial candidates, and television stations broadcasting the debate.
A “contribution” includes any gift, deposit of money, or anything of value made by any person for the purpose of influencing an election for a Hawaii elective public or constitutional office.2
While the issue of contributions by an organization sponsoring a debate and broadcast stations is not specifically addressed in the Commission’s laws or rules, the Federal Election Commission (“FEC”) has.3
The FEC allows debates to be sponsored by a broadcaster, bona fide newspaper, a magazine or other periodical publication, or a tax-exempt nonprofit organization that neither supports nor opposes any candidate. The structure of the debates is left to the discretion of the organization, provided that:
- Such debates include at least two candidates;
- The debates are not structured to promote or advance one candidate over another; and
- Pre-established objective criteria are used to determine which candidates may participate in a debate. For primary election debates, the organization may restrict candidate participation to candidates seeking the nomination of one party, and need not stage a debate for candidates seeking the nomination of any other political party or independent candidates. For general election debates, the organization shall not use nomination by a particular party as the sole objective criterion to determine whether to include a candidate in the debate.4
Moreover, the FEC exempts from the definitions of both contribution and expenditure “any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication . . .unless the facility is owned or controlled by any political party, political committee, or candidate.”5 This is known as the “press exception.” The FEC has applied a two-step analysis to determine whether the press exception applies:
- The FEC asks whether the entity engaging in the activity is a press entity as described by the federal campaign finance law and regulations;6 and
- In determining the scope of the exception, the FEC considers: (1) whether the press entity is owned or controlled by a political party, political committee, or candidate; and (2) whether the press entity is acting as a press entity in conducting the activity at issue (i.e., whether the entity is acting in its “legitimate press function”).7
The Commission, therefore, adopts the FEC’s guidelines for sponsorship of a debate and broadcasting a debate and will apply these guidelines to each factual situation presented to determine whether a nonmonetary (in-kind) contribution is made.
The Commission provides this Advisory Opinion as a means of stating its current interpretation of the Hawaii Campaign Spending laws provided under Hawaii Revised Statutes section 11-191, et seq. and chapter 2-14, Hawaii Administrative Rules. The Commission may adopt, revise, or revoke this Advisory Opinion upon the enactment of amendments to the statue or the adoption of rules by the Commission.
Dated: Honolulu, Hawaii, March 1, 2007.
CAMPAIGN SPENDING COMMISSION
Steven E. Olbrich
Michael E. Weaver
1 The federal election law prohibits corporations and labor unions from using their treasury funds to make contributions and expenditures in federal elections. The Federal Election Commission, notwithstanding the prohibition, has issued detailed rules allowing a corporation or union to sponsor appearances by a candidate, a candidate’s representative, or a party representative. The types of permitted activities vary based upon whether the appearance is before (1) the restricted class of the corporation or union; (2) other employees and their families; or (3) the general public. Advisory Opinion No. 02-08 applies the requirements from 11 CFR 114.4(b) and 114.4(c), relating to appearances before employees and their families, to “any candidate appearance.”
2 Hawaii Revised Statutes section 11-191. An “expenditure” is defined in that same section to include any purchase or transfer of money or anything of value for the purpose of influencing an election for a Hawaii elective public or constitutional office.
3 The Commission has previously turned to the FEC for guidance in Advisory Opinion Nos. 05-07, 05-01, 04-05, and 02-08.
4 11 CFR 110.13(a) and 114.4(f)(2).
5 11 CFR 100.73 and 11 CFR 100.132.
6 See, e.g., Federal Advisory Opinions 2005-16, 2004-07, 2003-34, 2000-13, 1998-17, 1996-48, 1996-41, and 1996-16.
7 See Reader’s Digest Association v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981); FEC v. Phillips Publishing, 517 F. Supp. 1308, 1312-1313 (D.D.C. 1981);