State of Alaska

Department of Administration

Alaska Public Offices Commission

Alaska Department of Administration, Alaska Public Offices Commission

AO 05-04-CD

Number: AO 05-04-CD

Requested by: Jack Frost
Alaska Talk Radio Network

Prepared by: Brooke Miles, Executive Director

Date Issued: March 31, 2005

Subject: Employment as a Radio Talk Show Host while running for public office

This Advisory Opinion responds to Jack Frost's March 10, 2005 letter asking for an opinion regarding his continued employment as the owner of Alaska Talk Radio Network and a talk radio host for “Jack Frost and Friends.” Mr. Frost has stated that he is planning to file a letter of intent to become a candidate for the office of mayor of Anchorage in the April 2006 election. Mr. Frost has also asked if it would create fairness for him to invite other mayoral candidates to participate as co-hosts on Jack Frost and Friends, a daily talk show.


Short Answer

  • You may continue to host the radio show “Jack Frost and Friends” with the following caveats:
  • You may not communicate or advocate on behalf of your election campaign while hosting your program; and
  • You may not communicate or advocate on behalf of any other candidate’s election campaign while hosting your talk show program.

This restriction includes express communications as well as electioneering communications but does not include issue communications.

The Alaska Campaign Disclosure Law states that only individuals or groups may contribute to a candidate. Corporations, associations, partnerships and other businesses except a solely owned business are prohibited from contributing to candidates. If you advocate for your election or that of another candidate, your employer – KUDO-AM Radio – would be making a prohibited non-monetary contribution to your or another candidates’ campaign. This restriction also applies to any mayoral candidates who choose to co-host with you during this time.

Campaign Disclosure Law and Regulations

Only an individual or group may make contributions. An individual may not contribute more than $1,000 per year to a candidate. AS 15.13.070(a), (b)(1).

A Corporation, company, partnership, firm or association…that does not satisfy the definition of group or nongroup entity…may not make a contribution to a candidate, group or nongroup
entity. AS 15.13.074(f).

A corporation, company, partnership, firm or association that is not a group or nongroup entity may not make an independent expenditure for or against a candidate. AS 15.13.135.

The campaign disclosure law does not prohibit a person from engaging in educational election-related communications and activities including the sponsorship of open candidate debate forums, participation in get-out-the-vote or voter registration drives, as long as this activity does not favor a particular candidate, political party or political position and the dissemination of the views of all candidates running for a particular office. AS 15.13.150(3), (4) and (5).

A candidate is an individual who files for election to the state legislature, for governor, for lieutenant governor, for municipal office, for retention in a judicial office, or for constitutional convention delegate, or who campaigns as a write-in candidate for any of these offices. AS 15.13.400(1)(A).

“Communication” means an announcement or advertisement disseminated through print or broadcast media, including radio, television, cable and satellite as well as the Internet. AS 15.13.400(3).

“Electioneering communication” means a communication that directly or indirectly identifies a candidate, addresses an issue of national, state or local political importance and attributes a position on that issue to the candidate identified and occurs within the 30 days preceding a general or municipal election. [Emphasis added] AS 15.13.400(5).

“Express communication” means a communication that, when read as a whole and with limited reference to outside events, is susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate. AS 15.13.400(7).

“Issues communication” means a communication that directly or indirectly identifies a candidate and addresses an issue of national, state, or local political importance, and does not support or oppose a candidate for election to public office. AS 15.13.400(12).

An employer may not lend, pay, advance or reimburse employees for contributions to a candidate or group. 2 AAC 50.258.

Contribution is defined broadly to mean a payment, gift, subscription, loan, advance transfer, deposit of money, services, or anything of value made by a person or group for the purpose of influencing an election. AS 15.13.400(3); 2 AAC 50.250.

The provision of goods or services without charge, or at a charge that is less than the normal charge for the goods and services in the market, is a contribution. 2 AAC 50.250(c).

A contribution does not include costs incurred in covering or carrying a news story, editorial, or commentary by a broadcasting station, unless the media organization is owned or controlled by a political party, group or candidate. If the media organization is owned by a political party, group or candidate then the cost of the activity becomes a contribution, unless it is a news story that is a bona fide news account and is part of a general pattern of campaign–related news accounts that gives reasonably equal coverage to all opposing candidates in the listening area. 2 AAC 50.250(a)(3)(A).

A contribution does not include the provision of a service or facility to a candidate or group, if the entity providing the service or facility is paid at a commercially reasonable rate with within a commercially reasonable time or makes the service or facility available to all candidates for a particular office. 2 AAC 50.250(a)(3)(G).

A contribution includes the provision of goods or services without charge or at a charge that is less than the normal charge for goods and services in the market, unless a lower rate is extended to all campaigns. If goods or services are provided at less than the normal charge in the market, the difference between the normal charge and the amount charged is a non-monetary contribution. 2 AAC 50.250(c)

Election-related communications and activities are educational if they do not favor a particular candidate or provide an opportunity for the expression of views of all candidates.
2 AAC 50. 379(1)(2)

Facts

You are planning on filing a letter of Intent to run for Mayor of Anchorage. The election will be held in April of 2006.

You are the owner of Alaska Talk Radio Network and as the owner, you host a talk show called “Jack Frost & Friends” that is broadcast on KUDO-AM, Monday through Friday from 11 AM to 2 PM. This endeavor is your livelihood.

Your company employs a producer and two part-time employees.

You are planning on expanding your talk radio show to the Fairbanks and Juneau markets.

You have stated that the call-in program is an educational one and that you do not intend to use the talk show to promote your candidacy. You do not plan to promote any other candidate’s campaign.

You are entertaining the idea of asking other Anchorage mayoral candidates to co-host with you as an interest in creating fairness in the electoral process.

Analysis

When a person declares their candidacy by filing a letter of intent with the Alaska Public Offices Commission, they certify that they will comply with the requirements of AS 15.13. This means that a candidate for public office will report all contributions received and expenditures accrued on behalf of their campaign. You have stated that it is your intent to become a candidate for the April 2006 mayor’s election in Anchorage. Once you have declared for office
(by filing a letter of intent with the Alaska Public Offices Commission), you are a candidate and as such subject to the Alaska campaign disclosure law and the enabling regulations.

A candidate for municipal office may receive up to $1,000 in contributions from individuals, $2,000 from groups, and $5,000 political parties. However, a candidate cannot accept contributions from a business entity, unless it is a sole proprietorship. There is no limit to the amount a candidate may contribute to his or her own campaign as long as it is done 33 days before an election. Under the campaign disclosure law, a business that provides a service for less than its normal charge is making a non-monetary contribution of the difference between the normal charge and the reduced charge. Advocacy of your candidacy by Radio Talk Show network would be a nonmonetary contribution to your campaign. Normally news shows have wide latitude to comment on current affairs, including elections. 2 AAC 50.250(a)(3)(A) excludes editorial commentary from the definition of “contribution,” for example. But after you declare your candidacy, Talk Radio Network and your show will be candidate-owned or controlled and the exception in 2 AAC 50.250(a)(3)(A) will no longer apply. Any broadcast concerning your candidacy could be a campaign contribution unless it is part of a bona fide news account or gives equal coverage to all opposing candidates.

Broadcasting has been your life-long profession and is your principal occupation. In this capacity you host a daily talk radio program that focuses on statewide issues. Although your current audience is south central Alaska, future plans call for it to also be broadcast on stations in Juneau and Fairbanks. Because this radio program represents your occupation, the sole income of another person (your producer) and part-time employment for two support services positions, you want to comply with the requirements of the campaign disclosure law without losing the income your radio show provides to you and others.

The law does not prohibit you from continuing in your job as a radio announcer, however, you may not advocate or make express communications regarding your candidacy or any other person’s candidacy. If you advocate on behalf of your campaign or that of any other candidate, a non-monetary contribution from an entity not permitted to contribute to candidates may result.

The campaign disclosure law defines express communications as being a communication that when read as a whole and with limited reference to outside events is susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate. Express communication covers the use of such explicit words of advocacy as “Vote for”, “Don’t Vote For.” You should be cautioned that it also covers communications that are less explicit but that are understood to communicate the same message. Because of your role as the talk show host, any mention of your candidacy would likely be understood as an endorsement by the station, and staff recommends that, if you continue to host your talk radio show, you not mention your candidacy, even in response to on-air inquiries.

These rules apply to your employees as well as to you. If your employees wish to assist your campaign, they may; however, they must not campaign on work time. Unless they are on personal time (on leave, vacation, or off-duty), their campaign-related activity would be a prohibited contribution or expenditure by your corporation, Alaska Talk Radio Network.

In addition, if you choose to continue broadcasting your talk show through the final 30 days before the April 2006 election, you must not engage in electioneering communications in your broadcasts or your corporation will be making a prohibited campaign contribution or expenditure. An electioneering communication is a communication within 30 days before a municipal election that directly or indirectly identifies a candidate and addresses an issue of national, state or local importance and attributes a position on that issue to the candidate. Thus, your commentary would be restricted during this final period before the election because you would be foreclosed from taking positions on most issues. A hiatus or guest host during this time period would be one solution.
With respect to the expansion of your program to other geographical areas, there is no prohibition regarding this activity, except, once again, you may not advocate for your candidacy or for anyone else’s candidacy while on the air because such advocacy would be a prohibited corporate contribution or expenditure. Please note that you may not use your campaign funds to pay for any travel, food, lodging or any other expenses related to your business, including expanding your program. Under AS 15.13.112, a candidate may only make expenditures from contributions that reasonably relate to seeking office.

Again, there is no direct prohibition in asking other mayoral candidates to co-host with you, however, they, like you, are prohibited from advocating for their candidacy or anyone else’s.

You have stated that your show is an educational show. The campaign law excludes certain educational activities from the campaign activity that APOC regulates:

The publication of the date and location of an election;
The education of students about voting and elections;
The sponsorship of open candidate debate forums;
Participation in get-out-the-vote or voter registration drives that do not favor a particular candidate, political party or political position; and
The dissemination of the views of all candidates running for a particular office.

Such activity would be unusual on a talk show, but it would be permissible because it would not fall within the jurisdiction of the Alaska Public Offices Commission. In addition, general educational information about an election that allows all candidates to participate or addresses both sides of a ballot issue also is not considered campaign activity that the commission regulates. 2 AAC 50.379states that election educational activities do not favor particular candidates or provide an opportunity for the expression of views of all candidates or both sides of a ballot issue.
Conclusion

AS 15.13 does not require you to stop hosting your talk show after you become a municipal candidate, but it will limit the subjects you may address on your show. Because of the limits on campaign expenditures and contributions, you may not campaign on your show and any discussion of the election must be so even-handed that it cannot be understood reasonably to advocate for your election or the election of any other candidate. In the thirty days immediately before the election, even attributing a position to a candidate on an issue of local, state, or national interest would be prohibited.

The Commission approved the advice in this letter by an affirmative vote of 5-0 on June 22, 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.