Advisory Opinion 01-07

       A candidate has requested an advisory opinion on whether a promotional advertisement using a campaign related news story may fall within the jurisdiction of the campaign spending laws.

     At issue is an advertisement in a local newspaper that was printed with the intent of promoting its marketing potential. The advertisement depicts images of all of the periodicals issued by the publisher. Among several images of various front-page images, one of the partial images in the advertisement is a headline and story reporting an incumbent’s announcement that he is entering the gubernatorial race. The question is whether running this advertisement on a regular basis represents a reportable contribution to the candidate. Based upon the facts presented, the Commission answers in the negative.

     The United States Supreme Court has ruled that advertisements containing "express advocacy" may be subject to campaign spending regulation, but that advertising that is "informational", expressing facts or opinions and not expressly advocating, is protected from such regulation by the First Amendment.

     This distinction is not easily made in practice. Fortunately, 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 a three part test for express advocacy as follows:

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.

     There are additional complexities when a candidate is an incumbent and their actions are often reflected in numerous media venues. Public service announcements ("PSA") present similar concerns. 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. The expressed intent, frequency and timing of the advertisement are elements that would be considered under the provisions in §11-191, Hawaii Revised Statutes ("HRS"). Particular advertisements are defined and subject to the campaign spending laws. The definition for "advertisement" is provided in §11-191, HRS, 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 any advertisement or PSA is subject to the campaign spending laws.

     In the instant case, it is clear that the intent of the advertisement was to promote the publisher’s efforts to solicit advertisers for its various publications. There is nothing in the particular advertisement that expressly advocates for the nomination or election of any particular candidate. However, this does not diminish the Commission’s Advisory Opinion No. 00-04, which advised that there is potential value for free radio and television broadcast time if that time is provided for the purpose of influencing a candidate’s nomination or election. That opinion interpreted the campaign spending law to apply 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 were used by candidates for the purpose of campaigning or influencing voters.

     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, September 18, 2001.

CAMPAIGN SPENDING COMMISSION

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A. Duane Black
Chairperson

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Della Au Belatti
Commissioner

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Clifford Muraoka
Commissioner

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Mona Chock
Commissioner