Advisory Opinion 00-07
An individual has been employed locally in radio and television for many years, and this employment is the individual’s principal business. The individual does not have any ownership nor management interest in any media organization and is contemplating candidacy for an elective office. The individual requests an opinion as to whether this employment would preclude his running for an elective office, or in the alternative, would it be necessary to take leave of his employment in radio or television, should he choose to run for elective office. The Commission, by this Advisory Opinion, responds that an individual need not leave employment in radio, television or other media as a candidate for public office, as long as any such position is not used to promote the candidate for elective office.
The campaign spending statute contains no express or implied language regarding the propriety of employment by a candidate in a media related field. Instead, questions on the employment in the media are usually related to the potential for contributions and expenditures relating to the employment. In other words, does the employment in a radio or television program, for example, constitute a contribution or expenditure by one person or another to the candidate? Is there a reportable activity by the sponsor or the owner of the station or program?
Section 11-191, Hawaii Revised Statutes defines a contribution to include any “gift, subscription, deposit of money or anything of value,” for the purpose of “influencing the nomination for election, or election, of any person to office.” Similarly, an expenditure means any “purchase or transfer of money or anything of value, or promise or agreement to purchase or transfer of money or anything of value, or payment incurred or made, or the use or consumption of a nonmonetary contribution,” for the purpose of “influencing the nomination for election, or election of any person seeking nomination for election, or election, to office”.
The Commission has ruled consistently, that the mere appearance of a candidate on a radio or television program, absent any communication advocating the nomination or election of the candidate, or the solicitation of campaign contributions, does not give rise to a contribution or expenditure. Thus, where a candidate has been regularly employed in the media and the purpose of the candidates activities or discourse are not related to advocating the nomination or election of any candidate, there would not be a contribution or expenditure. The employer of the candidate would not be required to report any activity as a contribution or expenditure, where there is no activity to advocate or promote a candidate or make a solicitation for a contribution. The Commission, advisory opinion is consistent with Federal Election Commission Advisory Opinions 1992-37 and 1977-42.
This Advisory Opinion does not express an opinion on any rulings or regulations by the Federal Communications Commission with regards to a candidate’s participation as an employee in radio or television. The Federal Communications Commission has jurisdiction over radio and television broadcasts and certain equal time provisions which radio and television stations must adhere to when campaign activity is involved.
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 section 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, July 5, 2000.
CAMPAIGN SPENDING COMMISSION
A. Duane Black