Advisory Opinion 00-04
A candidate has inquired on the circumstances under which “informational” or “public service” announcements will fall within the jurisdiction of the campaign spending laws.
Briefly, the Campaign Spending Commission (“Commission”) regulates all forms of “express advocacy” including but not limited to radio and television productions and broadcasts. The United States Supreme Court has ruled that advertisements containing “express advocacy” may be subject to campaign spending regulation, but that advertising that is merely “informational”, expressing facts or opinions and not expressly advocating a candidate, receives constitutional protection from administrative regulation pursuant to the First Amendment. The Ninth Circuit Court of Appeals has articulated the federal constitutional standard that is to be applied in identifying “express advocacy”. In Federal Election Commission v. Furgatch, 807 F.2d 857 (9th Cir. 1987), the court articulated the test for express advocacy as follows:
When read as a whole, and with limited reference to external events, be susceptible to no other reasonable interpretation but as an exhortation to vote for or against a specific candidate. This standard can be broken into three main components. First, even if it is not presented in the clearest, most explicit language, speech is “express” for present purposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed “advocacy” if it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act. Finally it must be clear what action is advocated. Speech cannot be “express advocacy of the election or defeat of a clearly identifiable candidate” when reasonable minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to take some other kind of action.
The identification of whether a public service announcement “PSA” is “express advocacy” or merely information and general education will determine whether a candidate’s participation or appearance in an announcement or message will be exempt from the disclosure, disclaimer and contribution limit provisions put in place to serve the public’s interest. An organization or committee may produce a pure informational advertisement that could avoid all requirements of public accountability associated with express advocacy.
It is often difficult to determine whether a PSA is an informational advertisement or express advocacy, especially where a candidate may be an incumbent who utilizes forms of public media to communicate his or her achievements and accomplishments with the general public or constituents. Often, the frequency and intensity of these efforts to communicate with constituents increase prior to an upcoming election. The expressed intent, frequency and timing of the advertisement are elements that will be considered under the provisions Hawaii Revised Statutes (“HRS”) §11-191.
Particular advertisements are defined and subject to the campaign spending laws. HRS §11-191 provides the definition for “advertisement” as follows:
(1) Any communication, exclusive of bumper stickers or other sundry items, that:
(A) Identifies a candidate either directly or by direct implication;
(B) Advocates or supports the nomination for election of the candidate;
(C) Advocates or supports the election of the candidate; or
(D) Advocates or supports the candidate’s defeat.
The intent of the law is to regulate any form of advertisement that directly associates a candidate to a specific and expressed effort to influence a candidate’s nomination bid, election, or defeat in an election. The Commission’s interpretation and application of the Supreme Court’s decision and Hawaii’s campaign spending laws adopts and applies the “express advocacy” test to determine, on a case by case basis, whether a candidate’s participation in a PSA is subject to the campaign spending laws.
Free radio and television broadcast time represents value if it is provided for the purpose of influencing a candidate’s nomination or election. If a broadcast serves to influence a nomination or election of a candidate the market value of that broadcast must be considered a contribution and all related parties are subject to all applicable campaign spending provisions. Even if the broadcast provider did not intend to influence a nomination or election, the radio or television time would be considered a contribution if it is used by the candidate for that purpose. In short, if free radio or television time is used to campaign or influence a voter, it may be considered a contribution and will be subject to contribution limits.
This Advisory Opinion is provided by the Commission as a means of stating its current interpretation of the Hawaii Election Campaign Contributions and Expenditures laws provided under HRS § 11-191, et seq. and the administrative rules of the Commission provided in chapter 2-14, Hawaii Administrative Rules. The Commission may adopt, revise, or revoke this Advisory Opinion upon its own initiative or upon the enactment of amendments to the Hawaii Revised Statutes or the adoption of amendments to the administrative rules by the Commission.
Dated: Honolulu, Hawaii, February 29, 2000.
CAMPAIGN SPENDING COMMISSION
A. Duane Black
E. Elizabeth Lee