Number: AO 05-01-CD
Requested by: Thomas P. Amodio
FOSTER PEPPER RUBINI & REEVES LLC
On behalf of the Alaska Conservation Voters
Prepared by: Brooke Miles, Executive Director
Date Issued: February 18, 2005
Subject: Obtaining Candidate Photographs for use in Independent Expenditure Activities
Alaska Conservation Voters (ACV) is a registered nongroup entity; under AS 15.13.135 ACV is permitted to give campaign contributions and to make independent expenditures.
ACV finds that voters rely on photographs to identify candidates, and it wants to include photographs of candidates in its independent expenditure activities Thus, ACV seeks to obtain and use photographs of candidates in a manner that will avoid converting its independent expenditure activities into direct contributions to the candidate.
ACV asks if it may request a photograph from a candidate or purchase a photograph from a candidate without providing any information to the candidate on how it intends to use the photograph.
ACV asks if it is permissible for them to ask the candidates to whom it sends a candidate questionnaire to provide a picture with their response without providing any information as to how the photograph may be used.
Additionally, ACV asks if it is permissible for them to purchase or obtain candidate photographs from a third party, such as a private photographer or a political party.
If Alaska Conservation Voters can obtain photographs of the candidates without consultation or cooperation with the candidate, either directly or indirectly, about the intended use of the photograph; it should be able to avoid converting what would otherwise be an independent expenditure into a non-monetary contribution.
Applicable Law and Regulations
Sec. 15.13.067. Who may make expenditures. Only the following may make an expenditure in an election for candidates for elective office:
(1) the candidate;
(2) an individual;
(3) a group that has registered under AS 15.13.050; and
(4) a nongroup entity that has registered under AS 15.13.050.
Sec. 15.13.135. Independent expenditures for or against candidates.
(a) Only an individual, group, or nongroup entity may make an independent expenditure supporting or opposing a candidate for election to public office. An independent expenditure supporting or opposing a candidate for election to public office, except an independent expenditure made by a nongroup entity with an annual operating budget of $250 or less, shall be reported in accordance with as 15.13.040 and 15.13.100 - 15.13.110 and other requirements of this chapter.
(b) An individual, group, or nongroup entity who makes independent expenditures for a mass mailing, for distribution of campaign literature of any sort, for a television, radio, newspaper, or magazine advertisement, or any other communication that supports or opposes a candidate for election to public office
(1) shall comply with AS 15.13.090 ; and
(2) shall place the following statement in the mailing, literature, advertisement, or other communication so that it is readily and easily discernible:
This NOTICE TO VOTERS is required by Alaska law. (I/we) certify that this (mailing/literature/advertisement) is not authorized, paid for, or approved by the candidate.
Sec. 15.13.400. Definitions. In this chapter,
(A) means a purchase or a transfer of money or anything of value, or promise or agreement to purchase or transfer money or anything of value, incurred or made for the purpose of
(i) influencing the nomination or election of a candidate or of any individual who files for nomination at a later date and becomes a candidate;
(ii) use by a political party;
(iii) the payment by a person other than a candidate or political party of compensation for the personal services of another person that are rendered to a candidate or political party; or
(iv) influencing the outcome of a ballot proposition or question;
(B) does not include a candidate's filing fee or the cost of preparing reports and statements required by this chapter;
(C) includes an express communication and an electioneering communication, but does not include an issues communication;
(10) "independent expenditure" means an expenditure that is made without the direct or indirect consultation or cooperation with, or at the suggestion or the request of, or with the prior consent of, a candidate, a candidate's campaign treasurer or deputy campaign treasurer, or another person acting as a principal or agent of the candidate;
2 AAC 50.270. INDEPENDENT EXPENDITURES. (a) An expenditure is not an independent expenditure as defined in AS 15.13.400 if it is made in cooperation, consultation, or concert with or at the request, suggestion, or prior consent of a candidate, treasurer, or deputy treasurer, or an agent of the candidate or group. An expenditure that is not an independent expenditure includes the following
(1) an expenditure based on information about the candidate’s or group’s plans, projects, or needs provided by the candidate or an agent of the candidate or group;
(2) an expenditure made by any person or group based on data from a candidate’s or group’s pollster or campaign consultant or any other person who receives compensation or reimbursement from the campaign;
(3) an expenditure made for the purpose of soliciting contributions to be paid to a candidate or group;
(4) an expenditure made to finance the distribution of campaign material provided by the candidate, treasurer, campaign consultant, or any other agent of the candidate or group.
(b) Independent expenditures may be made without limit on the amount or frequency.
(c) A person making an independent expenditure must disclose the following on an independent expenditure report under AS 15.13.040(d) and (e):
(1) the date of the expenditure;
(2) the amount of the expenditure;
(3) the check number, if the expenditure is paid by check;
(4) the name and address of the payee;
(5) a description of items or services purchased;
(6) identification of the candidate or ballot proposition the expenditure was intended to influence;
(7) a statement as to whether the expenditure was intended to support or oppose the candidate or ballot proposition.
(d) To obtain an exemption from the requirements in AS 15.13.040 and AS 15.13.135, an individual must file a written exemption request with the commission and provide the nature of the expenditure and the need for an exemption. The exemption will be kept confidential pending a final determination by the commission. If the commission determines that the individual would likely be subject to undue harassment, threats, or economic reprisals as the result of public disclosure, the commission will grant the exemption. If the purpose of the expenditure is to sponsor or produce a communication, after publication the individual granted an exemption shall provide the commission with a copy of the communication.
2 AAC 50.364. CONSTITUTIONALLY QUALIFIED NONPROFIT CORPORATIONS. (a) Notwithstanding AS 15.13.070, 15.13.074(f), and 15.13.135, a nonprofit corporation may qualify to contribute to candidates and groups and may qualify to make independent expenditures for or against candidates.
(b) A nonprofit corporation that qualifies under this section must comply with requirements applicable to groups under AS 15.13. However, if it meets the criteria in 2 AAC 50.352(c) the qualified nonprofit corporation may report as an individual. To file as an individual, the qualified nonprofit corporation must submit a report of contributions or of independent expenditures under AS 15.13.040(d).
(c) Money that a nonprofit corporation qualified under this section raises in order to make contributions and independent expenditures to influence the outcome of an election must be kept in a separate account and disclosed to the commission.
(d) To qualify under this section, and before it makes a contribution or independent expenditure, a nonprofit corporation must submit to the commission the following items:
(1) a copy of a determination from the United States Internal Revenue Service that the corporation is a social welfare organization as described in 26 U.S.C. 501(c)(4);
(2) a copy of the certificate of incorporation issued under AS 10.20 (nonprofit corporations);
(3) a copy of the nonprofit corporation’s articles of incorporation and bylaws;
(4) an affidavit from a director or officer that the corporation’s purposes include one or more of the following:
(A) issue advocacy;
(B) election-influencing activity;
(C) research, training, or educational activities tied to the corporation’s political goals;
(5) an affidavit from a director or officer that the corporation does not include shareholders or persons other than employees who
(A) have an equitable interest in the corporation or are affiliated in a way that would allow them to make a claim on the organization’s assets or earnings; or
(B) receive a benefit that they would lose if they ended their affiliation with the corporation or that they could not obtain unless they became affiliated; for the purposes of this subparagraph, “benefit” includes a credit card, an insurance policy, a savings plan, and education or business information.
(e) The commission staff shall review the documentation submitted under (d) of this section for completeness. If it determines that the documentation is complete, the commission staff shall issue a determination that the nonprofit corporation qualifies under this section. If the commission staff determines that the documentation is incomplete, the commission staff may request and review additional information. Upon determining whether the nonprofit corporation qualifies under this section, the commission staff shall notify the applicant.
(f) No later than 30 days after the commission staff notifies the applicant of the staff’s determination under (e) of this section, the nonprofit corporation may request that the commission review the determination. After reviewing the staff’s determination and any additional information at its next regular meeting, the commission will issue a determination regarding whether the nonprofit corporation qualifies under this section. The commission will provide a copy of its determination to the nonprofit corporation. The commission’s determination is a final order for the purposes of an appeal to the superior court under AS 44.62.560.
ACV is a registered nongroup entity. As such, it is permitted by law to make independent expenditures in support of or opposition to candidates and ballot questions. AS 15.13.067, AS 15.13.135, AS 15.13.140.
The law requires an independent expenditure to be completely independent from a candidate’s campaign. It must not be coordinated with a candidate or a member of a candidate’s campaign, nor may it be a cooperative effort between the maker of the independent expenditure and a candidate’s campaign. AS 15.13.400((10).
Administrative regulations further provide that an independent expenditure may not be made in cooperation, consultation, or concert with or at the request, suggestion, or prior consent of a candidate or a member of a candidate’s campaign committee. 2 AAC 50.270
ACV may ask candidates for a photograph, or it may purchase a photograph from a candidate. The request or purchase will not be a non-monetary contribution if ACV does not communicate any information about how it intends to use the photograph or any information whatsoever about its planned independent expenditure activities. Likewise, by purchasing candidate photographs from private photographers, ACV should be able to avoid the cooperation, consultation, and concerted activity with the candidate that would result in a non-monetary contribution if ACV were to use the photograph in a campaign-related expenditure.
Other methods of obtaining photographs could also avoid cooperation, consultation or acting in concert with the candidate or the candidate’s campaign committee. ACV may request that candidates, when they respond to a candidate questionnaire regarding the candidate’s position on issues, include a photograph with their response. Again, ACV must not communicate any information related to their intended use of the photograph the are requesting the candidate to provide if it wants to avoid making a non-monetary contribution.
ACV could also obtain candidate photographs from a political party and avoid making a non-monetary contribution to the candidate as long as ACV does not coordinate its independent expenditure plans with the campaign activities of the political party.
The key is the level of communication about the intended use of the photograph. If ACV does not share its plans, it should be able to avoid the cooperation, consultation, or concerted activity that would result in an expenditure being considered a non-monetary contribution for purposes of reporting and the dollar limits.
The Commission approved the advice in this letter by an affirmative vote of 4-1 on March 1, 2005. The advice in this opinion applies only to the specific activity for which the advice was requested.
A copy of the original letter requesting the above advisory opinion is available upon request at the Alaska Public Offices Commission. 907/276-4176.