2008-08-19 - WRITTEN OPINIONS

2008-08-19. WRITTEN OPINIONS

GARY O. BARTLETT

EXECUTIVE DIRECTOR

MAILING ADDRESS:

P.O. BOX 27255

RALEIGH, NC 27611-7255

August 19,2008

Mr. Marshall Hurley

2400 Freeman Mill Road

Greensboro, North Carolina 27406

Dear Mr. Hurley:

In your letters of June 18, 2008 and July 30, 2008, you asked several questions on behalf of your client, Bob Crumley, a candidate for statewide office in the November 2008 elections. The questions concern the applicability of statutes concerning "electioneering communications" and "candidate-specific communications" to expenditures made by a law firm, Crumley & Associates, with which Bob Crumley is associated, for television advertisements. You provide samples of the advertisements, many of which include the name "Bob Crumley" or his image or both.

You ask, first, whether the advertisements, if they were aired within 60 days of the election, would constitute "electioneering communications" within the meaning of G.S. 163-278.80(2). That statute provides:

The term "electioneering communication" means any broadcast, cable, or satellite communication that has all the following characteristics:

a. Refers to a clearly identified candidate for a statewide office or the General Assembly.

b. Is made within one of the following time periods:

1. 60 days before a general or special election for the office sought by the candidate, or

2. 30 days before a primary election or a convention of a political party that has authority to nominate a candidate for the office sought by the candidate.

c. Is targeted to the relevant electorate.

Specifically, you ask whether the appearance of Mr. Crumley in the advertisements constitutes a reference "to a clearly identified candidate" within the meaning of the statute.

The answer to this question is Yes. Mr. Crumley is a candidate for statewide office and he is clearly identified in the advertisements. If, on the other hand, the advertisements named only the business entity and contained neither the name of the candidate nor his picture, they might be thought not to refer to a clearly identified candidate and not to meet the definition of "electioneering communication."

You ask, second, whether the advertisements, if they were aired within 60 days of the election, would be prohibited by G.S. 163-278.82. That statute prohibits certain entities from providing the resources to cover the costs of electioneering communications. Among the entities prohibited are professional associations, such as Crumley & Associates. The statute, as amended by the 2008 session of the General Assembly, provides an exception to the prohibition, however, in new paragraph (d). By new paragraph (d), the-prohibition does not apply "unless the electioneering communication at issue is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Almost all of the advertisements that you submitted contain solicitations for legal services and thus appear to qualify for the exception under new paragraph (d). Therefore, the answer to your second question, with respect to such advertisements, is No, the advertisements, although constituting electioneering communications, would not be prohibited by G.S. 163-278.82.

You must take notice, however, that the advertisements may, although not prohibited by G.S. 163-278.82, constitute unlawful contributions under G.S. 63-278.15, which prohibits candidates from accepting contributions from professional associations. G.S. 163-278.6(6) provides that the term "contribution" includes disbursements for electioneering communications that are coordinated with a candidate. Given Mr. Crumley's role in the law firm, it may be that disbursements for the communication are coordinated with Mr. Crumley, and, if so, the advertisements would constitute unlawful contributions by the firm.

You refer, third, to G.S. 163-278.100, a statute in the set of statutes governing "candidate-specific communications." As defined in G.S. 163-278.100, the term "candidate-specific communication" has exactly the same meaning as the term "electioneering communication," except that a candidate-specific communication occurs more than 60 days before a general election. You posit that the application of these statutes to the advertisements at issue might impermissibly burden and chill the constitutional rights of Mr. Crumley and his law firm with respect to commercial speech. It is not within the province or power of this agency to make such a judgment with respect to statutes enacted by the General Assembly. It is our task only to interpret the application of the statutes to particular conduct.

You note, finally, the reporting requirements of G.S. 163-278.101(b)(5) with respect to candidate-specific communications. That statute requires the disclosure of:

The identity of every provider of funds or anything of value whatsoever to the entity, providing an amount in excess of one thousand dollars ($1,000). If the provider is an individual, the statement shall also contain the principal occupation of the provider. The "principal occupation of the provider" shall mean the same as the "principal occupation of the contributor" in G.S. 163-278.11.

You ask whether, as applied to a law firm, this statute would require the disclosure of the identifies of all clients of the law firm who have provided payment to the law firm of $1,000 or more.

The answer to this final question is No. For guidance, we look to interpretation by the Federal Election Commission (FEC) of the electioneering communication provisions of the Federal Election Campaign Act of 1971 and its subsequent amendments, provisions substantially similar to our North Carolina provisions. In its interpretation published in the Federal Register, Vol. 72, No. 246, December 26, 2007, at pages 72910 and 72911, the FEC decided to require the disclosure only of "persons who made donations for the purpose of funding [electioneering communications]," not sources of funds that make up the "general treasury funds" of the entity paying for electioneering communications. In the case of Crumley & Associates, it would appear that clients have not paid funds into the firm for the purpose of funding candidate-specific communications, and therefore their identities need not be disclosed.

This opinion is based upon the information provided in your letters of June 18, 2008 and July 30, 2008. If the information should change, you should evaluate whether this opinion is still applicable and binding. Finally, this opinion will be filed with the Codifier of Rules to be published unedited in the North Carolina Register and the North Carolina Administrative Code.

Sincerely,

@#9#@

Gary O. Bartlett

cc: Julian Mann, III, Codifier of Rules

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