Our File No. I-02-149 Dear Mr. Koontz:
This letter is in response to your request for advice regarding the contribution and mass mailing provisions of the Political Reform Act (the “Act”).1 Because your question is general in nature, we are providing you with informal assistance.2
Does a cable television program produced by the Diamond Bar Chamber of Commerce (Chamber) and co-hosted by a current city council member result in independent expenditures by the Chamber or contributions to the city council member?
CONCLUSION No independent expenditures or contributions will result so long as the program does not contain express advocacy, does not make reference to the city council member’s candidacy for elective office or the city council member’s opponents for elective office, and does not solicit contributions.
FACTS The Diamond Bar Chamber of Commerce, in addition to publishing a monthly newspaper, had previously produced a monthly 30-minute TV show on cable. You are in the final stages of resurrecting that television show, A View of Diamond Bar. You are not familiar with the restrictions and guidelines for this type of community information medium.
The proposed returning co-host is currently a city council member and you seek guidance as to whether there are any current or proposed guidelines on city council members appearing on cable programs. The show format is informational interviews and business introduction pieces. The chamber’s concerns are with the use of the council members’ image and name on the show and credits.
Additionally, the television show is carried on Adelphia channel 12, public access, and will now be shown on DB17, the governmental access channel controlled by the city. The use of the cable channel is included in the operating agreement between the City of Diamond Bar and Adelphia.
ANALYSIS The Act requires disclosure of contributions received and expenditures made by campaign committees. Section 82013 defines a “committee” as:
“[A]ny person or combination of persons who directly or indirectly does any of the following:
(a) Receives contributions totaling one thousand dollars ($1,000) or more in a calendar year.
(b) Makes independent expenditures totaling one thousand dollars ($1,000) or more in a calendar year; or
(c) Makes contributions totaling ten thousand dollars ($10,000) or more in a calendar year to or at the behest of candidates or committees.”
Contributions and Expenditures Section 82025 defines an “expenditure” as any payment made for a political purpose. A payment is “made for political purposes” when it is made for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate. (Regulation 18225(a)(1).)3
Section 82015 further provides that an expenditure made at the behest of a candidate is a contribution to the candidate unless full and adequate consideration is received for making the expenditure. Regulation 18215 excludes from the definition of “contribution” a payment made at the behest of a candidate, which is for a communication by the candidate or any other person, if the communication:
“(i) Does not contain express advocacy;
(ii) Does not make reference to the candidate’s candidacy for elective office, the candidate’s election campaign, or the candidate’s or his or her opponent’s qualifications for office; and
(iii) Does not solicit contributions to the candidate or to third persons for use in support of the candidate or in opposition to the candidate’s opponent.” (Regulation 18215(c)(4).)
Conversely, if the television program does urge viewers to vote for the city council member or refers to his or her campaign, it will be considered an in-kind contribution to the city council member, which may be reportable by the Chamber and the Chamber could be then considered a committee. A communication expressly advocates the nomination, election or defeat of a candidate if it contains express words of advocacy such as “vote for,” “elect,” “support,” “cast your ballot,” “vote against,” “defeat,” “reject,” “sign petitions for” or otherwise refers to a clearly identified candidate so that the communication, taken as a whole, unambiguously urges a particular result in an election. (Regulation 18225(b)(1)(D)(2).)
You stated in your letter that the A VIEW of Diamond Bar television program has a format that is “informational interviews and business introduction pieces.” So long as the cable television show does not expressly advocate either the city council member’s nomination or election, or the defeat of his opponents, then the program will not be considered a contribution or any other type of reportable expenditure.4 (McCauley Advice Letter, No. I-00-219.)
Equal Air Time
You also asked whether the Chamber or Adelphia must provide equal airtime for other council candidates. The Commission provides advice to persons with duties and responsibilities under the Act and to their authorized representatives. We cannot provide advice to third parties about another person’s duties or obligations under the Act, unless the person whose duties or obligations are in question has authorized the third party to request advice. (Section 83114; regulation 18329(b)(8)(B).) Therefore, we cannot advise on Adelphia’s duties under the Act.
Additionally, the Act does not regulate the issue of “equal time” regarding the broadcasts of federally regulated broadcast outlets, except to the extent that section 82015 includes “the granting of discounts or rebates by television and radio stations and newspapers not extended on an equal basis to all candidates for the same office” within the term “contribution.” From the facts you have provided, this section does not appear to apply to your situation because “discounts or rebates” are not at issue here. You may want to contact the Federal Communications Commission (FCC) regarding other rules regarding “equal time.”
There are no provisions in the Act that would require the council member to cease doing the program during his or her campaign.
If you have any other questions regarding this matter, please contact me at (916) 322-5660.
Counsel, Legal Division
1 Government Code sections 81000 – 91014. Commission regulations appear at Title 2, sections 18109-18997, of the California Code of Regulations.
2 Informal assistance does not provide the requestor with the immunity provided by an opinion or formal written advice. (Section 83114; regulation 18329(c)(3).)
3 Regulation 18225(b)(4)(B) provides an exemption from the definition of expenditure for the costs associated with express advocacy by a “federally regulated broadcast outlet.” This narrow exemption has been interpreted to apply to only bona fide news programs and does not appear to apply to your facts. (Recht Advice Letter, No. I-91-044.)
4 Regulation 18215(c)(8) provides an exemption from the definition of contribution for a “federally regulated broadcast outlet for the cost of broadcasting a news story, commentary, or editorial.”